Office of Personnel Management.
Interim rule.
The Office of Personnel Management (OPM) is issuing interim regulations to allow the automated transfer of Federal Employees' Retirement System (FERS) employee payroll account information from one payroll office to another, within the same agency, eliminating the requirement of creating and forwarding a hard copy Individual Retirement Record (IRR) to OPM for each intra-agency transfer. When an employee is no longer employed by the agency or is no longer covered under FERS, a comprehensive IRR will then be forwarded to OPM.
Interim rules effective April 20, 2000; comments must be received on or before July 19, 2000.
Send comments to Mary Ellen Wilson, Retirement Policy Division, Office of Personnel Management, P.O. Box 57, Washington, DC 20044; or deliver to OPM, Room 4351, 1900 E Street, NW., Washington DC. Comments may also be submitted by electronic mail to
For Part 841: John Panagakos, (202) 606-0299.
5 CFR 841.504(d) directs an agency payroll office to close a FERS employee's IRR and forward it to OPM when the employee separates, transfers to another agency or to a position serviced by another payroll office, or transfers to a position in which he or she is not covered by FERS. This means that even when an employee transfers within an agency, but is subject to a different payroll office, a hard copy IRR must be created from the payroll information and forwarded to OPM. There are compelling reasons to retain the requirement to create a hard copy IRR each time an employee (1) moves from one agency to another; (2) separates from Federal service; or (3) changes retirement coverage. However, recent automated advances obviate the need to immediately create and forward an IRR to OPM for every intra-agency transfer that only involves different payroll offices under the same system of automated records.
As a result of modernization efforts in automated record keeping software, early in the year 2000 the Defense Finance and Accounting Service (DFAS) plans to implement the automated transfer of large numbers of payroll accounts from one payroll office to another within their agency. This software also has the capability to electronically transfer retirement information as well as payroll information, thus securing an accurate record of retirement information for hard copy certification and transmittal to OPM when the employee falls into one of the three retained categories listed above (e.g., separates from Federal service).
For these reasons, the Office of Personnel Management is proposing to amend 5 CFR 841.504(d) to allow agencies this flexibility in intra-agency record keeping. OPM's authority to make this amendment is in section 8461(g) of title 5, United States Code.
Under section 553(b)(3)(B) and (d)(3) of title 5, United States Code, I find that good cause exists for waiving the general notice of proposed rulemaking and for making these rules effective in less than 30 days. These regulations will affect the operation of all Federal payroll offices on and after May 1, 2000. Publication of a general notice of proposed rulemaking would be contrary to the public interest because it would delay the implementation of cost saving automated record keeping measures that are non-controversial in nature.
I certify that this amendment to the regulation will not have a significant economic impact on a substantial number of small entities because the amendment provides a cost-saving option previously unavailable to those agencies but does not require that they obtain the necessary software to implement that option.
This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.
Administrative practice and procedure, Air traffic controllers, Claims, Disability benefits, Firefighters, Government employees, Income taxes, Intergovernmental relations, Law enforcement officers, Pensions.
5 U.S.C. 8461; § 841.108 also issued under 5 U.S.C. 552a; subpart D also issued under 5 U.S.C. 8423; § 841.504 also issued under 5 U.S.C. 8422; § 841.507 also issued under section 505 of Pub. L. 99-335, 100 Stat. 514; subpart J also issued under 5 U.S.C. 8469; § 841.506 also issued under 5 U.S.C. 7701(b)(2); § 841.508 also issued under section 505 of Pub. L. 99-335, 100 Stat. 514.
(d) When an employee separates from Federal service or transfers to another agency, or transfers to a position in which he or she is not covered by FERS, the agency must close the employee's
(1) Within the same agency, and
(2) To a position serviced by another payroll office, the agency may, in lieu of forwarding an IRR to OPM at the time of the intra-agency transfer, record the transfer for future IRR certification in an internal automated system of records.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are adopting as a final rule, with changes, a proposed rule to allow the importation of
May 22, 2000.
Donna L. West, Import Specialist, Phytosanitary Issues Management Team, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737-1236; (301) 734-6799.
Logs, lumber, and other unmanufactured wood articles imported into the United States could pose a significant hazard of introducing plant pests and pathogens detrimental to agriculture and to natural, cultivated, and urban forest resources. The regulations in 7 CFR 319.40-1 through 319.40-11 (referred to below as the regulations) contain provisions to eliminate any significant plant pest risk presented by the importation of logs, lumber, and other unmanufactured wood articles.
On July 28, 1998, the Animal and Plant Health Inspection Service (APHIS) published in the
We solicited comments concerning our proposed rule for 60 days ending September 28, 1998. We received 10 comments by that date. The comments were from four environmental groups (with overlapping management), three State governments, two corporations, and the Government of Chile. Seven of the commenters supported the proposed rule, although several stated that there were deficiencies in the rule that should be corrected before the rule could win their full support. The remaining commenters disagreed with the proposed rule or suggested alternatives to it. All of the issues raised by the commenters are discussed below.
Regarding the practicality of heat treating wood chips, heat treated wood chips are less useful than wood chips that have undergone less destructive treatments. Heat treatment decreases the quality of wood chips and renders them useless for many specific manufacturing purposes. Regarding the economic feasibility of the proposed surface pesticide treatment and fumigation, wood product companies have requested that they be able to utilize the surface pesticide alternative and, therefore, presumably find it economically feasible. Under normal business practices, it is not economically feasible for methyl bromide to effectively penetrate wood chips to more than 120 cubic feet. When penetration is inadequate, the requirements of the regulations are not met, and the wood chips cannot be imported under the fumigation treatment option. In theory, it is possible to effectively penetrate large piles of wood chips by using a specialized technique to distribute the fumigant (
The research cited did not evaluate efficacy against insects because it was not practical to do so in an experimental protocol addressing fungicidal efficacy. The report did note that while insect infestation of wood is always a risk, it is sharply reduced in wood chip shipments due to the fragmented nature of the wood and the near absence of bark. The report also noted that the presence of low levels of an insecticide such as chlorpyrifos should provide added insurance against incidental oviposition. The proposed treatment included, along with fungicides, an insecticide containing 44.9 percent of the active ingredient chlorpyrifos phosphorothioate. This, along with the regulatory requirement that the wood chips be produced from debarked, plantation-grown trees, should reduce the risk of introduction of dangerous insects with wood chips imported under the regulations to a negligible level.
The highest concentration of the proposed fungicide tested in the research was a 400:1 dilution. The research found that while this dilution achieved acceptable results in preventing fungal growth for 4 weeks after treatment, the growth levels increased during the period from 4 weeks to 16 weeks after treatment. The research suggested that for long-term protection, dilution levels around 200:1 would be more appropriate. When diluted in accordance with the label instructions, as proposed, the treatment solution would in fact be stronger than a 200:1 dilution. Since this standard exceeds that recommended by the researcher, we are making no change based on this comment.
Regarding the comment that the researcher recommended improvement to the uniformity of the spray system, the researcher specifically recommended improvement of the current spray system to increase the uniformity of treatment to at least 70 to 80 percent average coverage of the wood chips. The proposed rule actually required that the wood chips be sprayed so that all the chips are exposed to the chemical on all sides. This standard exceeds that recommended by the researcher; therefore, we are making no change based on this comment. We do not believe it is necessary to specify detailed engineering standards for how chip producers must achieve this degree of coverage (placement and number of spray nozzles, conveyer belt speed and configuration, etc.) because this would limit the producers' options for developing their own cost-effective solutions to the problem.
As noted by the commenter, the researcher also recommended establishment of two quality control and monitoring systems to check whether chips are being properly treated and to check whether dangerous fungi are present on wood chips imported under this system. Specifically, the researcher recommended routine assessment of chip treatment quality through dye tests and image analysis of chip samples and regular microbiological assessment of organisms present on wood chip shipments entering the United States. These activities fall under the category of monitoring and enforcement activities that APHIS may employ to ensure that regulated parties are complying with the regulations. Since these are internal agency activities that do not impose any requirement for action by an outside party, it is not necessary to include standards for these activities in the regulations. However, APHIS will monitor treatments to ensure that wood chips imported under the regulations have been properly treated and do not present a risk of introducing dangerous plant pests.
The main pesticides planned for treating wood chips are a fungicide with the active ingredients 64.8 percent didecyl dimethyl ammonium chloride (DDAC) and 7.6 percent 3-iodo-2-propynyl butylcarbamate (IPBC) and an insecticide with the active ingredient 44.9 percent chlorpyrifos phosphorothioate. The U.S. Environmental Protection Agency (EPA) approved these pesticides for specific uses on wood articles. The current label instructions call for these pesticides, when used as a spray treatment, to be diluted before use in the ratios of one gallon fungicide to 25-50 gallons of water for the fungicide, and one gallon of the insecticide to 50 gallons of water. When mixed together, the amounts of fungicide, insecticide, and water must be calculated so that each of the
The pesticides do leave residues, which would maintain the pest-free status of the wood chips while they are in transit to the United States. Although the degradation of IPBC and its primary degradation products is rapid (half lives of less than a week) (Troy Corporation, 1999), the caustic nature of the ammonium chloride on the wood chips prevents any potential for fungal reinfestation. The ammonium chloride in the pesticide is relatively volatile, and residues would mostly dissipate before arrival in the United States. The chlorpyrifos residues are more persistent and would continue to eliminate insect pest risks during transit.
The physical and toxicological properties of the pesticides determine the potential for nontarget hazards. The caustic nature of ammonium chloride can be highly irritating to eyes, skin, and the respiratory system. Unlike most carbamates, IPBC has not been shown to inhibit plasma and red blood cell acetylcholinesterase
The potential for human exposure to pesticides used in treatment of the wood chips is minimized by adherence to label requirements for proper application and to provisions in the rule regarding handling of the wood chips. The required adherence to the pesticide label prevents excessive exposure to applicators. The EPA has determined that the potential for adverse effects on human health is minimal when pesticides are applied according to label instructions. The rapid degradation of the pesticides results in steadily decreasing residues during transit. A covered conveyor belt moves the wood chips during unloading to expedite the process and minimize potential human exposure. Workers associated with the unloading activity are required to wear protective clothing and safety glasses. The covered conveyor belt is designed to prevent wood chips from spilling, falling, or being blown from the means of conveyance.
Although the wood chips may still have some residual pesticide residues before processing, the heat treatment and bleaching associated with the pulp and paper process would eliminate any remaining residues. Therefore, the potential for exposure to pesticide residues is limited to the personnel involved in treating the wood chips in Chile and to the personnel involved in moving the treated wood chips. The required safety precautions, protective clothing, and safety glasses preclude unacceptable pesticide exposures.
Exposure of nontarget species to residues from treated wood chips is minimal. The treatment and transport procedures preclude the presence of nontarget wildlife. Although wood chips that have been unloaded may be stored on a paved surface for up to 45 days, the remaining residues would be low. Birds and other terrestrial nontarget wildlife are unlikely to bother the wood chips with the frequent human activity on the property. The remaining residues (primarily chlorpyrifos) strongly adsorb to the organic matter in the wood chips, and this adsorption minimizes movement of residues in runoff following precipitation. In addition, water runoff is collected from the paved pads where the wood chips would be stored and is treated to prevent any environmental contamination of surrounding water bodies. This prevents any potential exposure to aquatic organisms.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule with the changes discussed in this document.
This rule has been reviewed under Executive Order 12866. The rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, has been reviewed by the Office of Management and Budget.
Set forth below are the economic analysis and cost-benefit analysis prepared for this rule in accordance with Executive Order 12866, as well as the final regulatory flexibility analysis regarding the economic effects of this rule on small entities, prepared in accordance with 5 U.S.C. 604.
Under the Federal Plant Pest Act (7 U.S.C. 150aa-150jj), the Secretary of Agriculture is authorized to promulgate regulations requiring inspection of products and articles as a condition of their movement into or through the United States and imposing other conditions upon such movement, in order to prevent the dissemination of plant pests into the United States.
This rule amends the regulations for importing wood chips to allow the importation of
APHIS regulations in place until now have called for, along with other requirements, heat treatment or fumigation of imported wood materials. While these safeguards are appropriate for most wood materials, they are less useful for wood chips. Heating of wood chips is time consuming and decreases the quality of the chips. Fumigation of large shipments of wood chips is not economically practicable. Therefore, importation of
Approximately $40 million worth of wood chips is imported into the United States each year for use in making pulp for paper production. Coniferous wood chip imports by the United States comprise less than one percent of domestic production.
Wood chips are used mainly in the manufacture of pulp that is then used to make paper and panel products.
The demand for wood chips used by pulp mills is a derived demand, depending on the market for pulp.
Chile's coniferous wood chip exports to the United States, 1994-1996, and Chile's share of coniferous wood chip imports by the United States are as follows:
In 1994, 57 percent of coniferous wood chip imports by the United States were from Mexico and 43 percent were from Canada. In 1995, pulp prices reached record levels, with U.S. coniferous wood chip imports more than doubling from the year before, to 703,000 metric tons from 331,000 metric tons. That year, no coniferous wood chips were imported from Mexico, 48 percent of imports came from Chile, 49 percent came from Canada, and 3 percent came from Brazil. In 1996, Canada's share of U.S. coniferous wood chip imports increased to 56 percent, 44 percent came from Chile, and none was received from Brazil.
Production of
Economic effects on the U.S. wood chip industry of potential Chilean imports, therefore, depend on the substitutability of
The test shipments of Chilean wood chips were received by pulp mills in the Pacific Northwest. This region is expected to continue to be the destination of future shipments, given the additional transportation costs that would be incurred by pulp mills in the eastern and southeastern United States. With sales regionally concentrated, little economic effect from this rule is expected outside the Pacific Northwest.
In sum, the test shipments from Chile have shown the value to Pacific Northwest pulp mills of Chilean wood chips in supplementing domestic and Canadian wood chip supplies when the price of pulp makes such shipments economically feasible. Pulp mills able to adjust milling processes to utilize
Chile's wood chip industry grew significantly during the 1980s, with production increasing more than tenfold, from 0.44 million tons in 1984, to 5.03 million tons in 1990.
Japan was, by far, the principal importer of Chilean wood chips from 1990 to 1996. (Country destinations by species are not known for these years.) From 1990 to 1994, an average of 96 percent of Chile's wood chip exports were received by Japan. With the test shipments of
From January to August, 1997, Japan's share of Chile's wood chip exports was 89 percent. The United States and Japan each received about one-half of Chile's
Chile's development of its forest products sector rests to a large degree on the success of
One set of projections describing the volume of
Realization of these export levels will depend on the demand for
Chile's stock of
Benefits from allowing
Test shipments of
In accordance with 5 U.S.C. 603, we performed an initial regulatory flexibility analysis, which was included in the proposed rule and which invited submission of comments and data to assist in a comprehensive analysis of the effects of this rule on small entities. We received one comment addressing the initial regulatory flexibility analysis. This comment stressed that the economics of domestic industries that might import wood chips are dynamic and change almost monthly; and, therefore, any prediction of import volume would be solely a guess. The comment also stated that if Chilean wood chips cost more than domestic supplies, they will be sought only if domestic supplies diminish below the amount required, and that at that point the owners of pulp mills (the major user of wood chips) will make a financial decision whether to pay higher prices for imported supplies or close mills. The comment also suggested that only a few wood chip consuming businesses located near seaports will be likely to import wood chips from Chile, but that some of these businesses do require the option of importing Chilean wood chips to stay in business.
We largely agree that these points correctly describe the current economic situation regarding importation of Chilean wood chips, and have taken the comment into account in the final regulatory flexibility analysis set out below. However, we note that if for any reason there is a significant decrease in domestic wood chip production, or a significant increase in their price, many more wood chip consumers, regardless of whether they are located near seaports, may decide to import wood chips from Chile.
The Regulatory Flexibility Act requires consideration of the potential economic effects of rules on small businesses, organizations, and governmental jurisdictions. In this instance, small entities directly affected will be U.S. wood chip producers and pulp mills in the Pacific Northwest.
Wood chip production is included in the SIC category for firms operating sawmills and planing mills. In most cases, wood chips are a byproduct of lumber production. A mill will vary its level of wood chip production (compared to other products) based on whether wood chip prices are high or low at a particular point in time. In the Pacific Northwest, about 150 mills produce wood chips (90 in Oregon and 60 in Washington), but more than one may be owned by the same firm.
Adverse economic effects on most “small” U.S. wood chip producers due to this rule will be minor. The Chilean imports are expected to be sold in the Pacific Northwest, thereby affecting a geographical subset of all wood chip producers. Adverse economic effects on Pacific Northwest wood chip producers will depend on the ability of such producers to find lower priced raw materials to produce wood chips or otherwise reduce cost, and the extent of their reliance on wood chips for their net revenues. Producers of those wood chips that are substitutes for
It is estimated that less than 5 percent of wood chip producers in the Pacific Northwest are “chipping” mills devoted solely to wood chip production.
Turning to the pulp mills, themselves, there were 37 firms operating pulp mills in the United States in 1994. Often more than one pulp mill is owned by a single firm. Pulp mill firms employing 750 people or fewer are designated by the Small Business Administration as “small.” In 1994, between 20 and 25 of the 37 firms were small, that is, between 54 and 68 percent of the total number of firms. Estimated annual receipts of these 20 to 25 “small” firms totaled between about $383 million and about $1.12 billion, which represented between 7 percent and 21 percent of total annual receipts by all pulp mills of about $5.30 billion. About 10 percent of U.S. pulp mills are in the Pacific Northwest.
Due to resin-content differences, pulp mills cannot use various species of wood chips indiscriminately. Pulp mills designed to process wood chips of
Test shipments of
No figures are available concerning potential costs of pest introductions through importation of
The pest risk assessment reported that in sharp contrast to native forests in Chile, that country's
Among the insect pests of
Pests potentially affecting untreated
The Pacific Northwest's coastal ranges and Cascade Mountains have some of the highest quality natural and planted conifer forests in the world, producing commodities ranging from pulp and paper, to lumber for construction, to ornamentals and Christmas trees. Introduced pests such as those described could affect forestry industries directly by causing damage or indirectly by curtailing commerce through quarantines.
Some potential costs of foreign timber pests have been estimated in other instances. For example, a pest risk assessment concerning Siberian timber imports estimated that the introduction of a single pest, larch canker, could cause direct timber losses of $129 million annually. The same study estimated that a worst-case scenario involving heavy establishment of exotic defoliators in the United States could cost $58 billion.
Concerning consumer and producer effects of allowing
The continuing reduction in timber sources in the Pacific Northwest will encourage more wood imports in the future, and Chile's expanded commercial forestry plantings promise a prominent role for that country as a wood products exporter. Effects on prices, if any, from imports for U.S. wood chip producers should be very small, since coniferous wood chip imports are less than one percent of U.S. production.
Moreover, trade statistics indicate that U.S. coniferous wood chip producers are finding overseas markets as profitable as their Chilean counterparts. U.S. coniferous wood chip exports in 1995 were valued at more than $222 million, and in 1996, at more than $181 million. As is true for Chile, the principal overseas coniferous wood chip market for the United States is Japan.
This rule includes a reporting and recordkeeping requirement that wood chips imported from Chile must be accompanied by a certificate issued by the Government of Chile, stating that all the applicable requirements of the regulations have been met.
We considered taking no action as an alternative to this rule. The no action alternative was rejected because we believe that the provisions of this rule will provide more supply alternatives for wood chip consumers, and make compliance easier for regulated individuals, without increasing the risk of introducing a plant pest into the United States.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
An environmental assessment and finding of no significant impact have been prepared for this rule. The assessment provides a basis for the conclusion that the importation of
The environmental assessment and finding of no significant impact were
Copies of the environmental assessment and finding of no significant impact are available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bees, Coffee, Cotton, Fruits, Honey, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
7 U.S.C. 150dd, 150ee, 150ff, 151-167, 450, 2803, and 2809; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.2(c).
(c)
(i) The wood chips must be accompanied by a certificate stating that the wood chips meet the requirements in paragraphs (c)(1)(i)(A) through (c)(1)(i)(C) of this section.
(A) The wood chips were treated with a surface pesticide treatment in accordance with § 319.40-7(e) within 24 hours after the log was chipped and were retreated with a surface pesticide treatment in accordance with § 319.40-7(e) if more than 30 days elapsed between the date of the first treatment and the date of export to the United States.
(B) The wood chips were derived from logs from live, healthy, plantation-grown trees that were apparently free of plant pests, plant pest damage, and decay organisms, and the logs used to make the wood chips were debarked in accordance with § 319.40-7(b) before being chipped.
(C) No more than 45 days elapsed from the time the trees used to make the wood chips were felled to the time the wood chips were exported.
(ii) During shipment to the United States, no other regulated articles (other than solid wood packing materials) are permitted in the holds or sealed containers carrying the wood chips. Wood chips on the vessel's deck must be in a sealed container.
(iii) The wood chips must be consigned to a facility in the United States that operates under a compliance agreement in accordance with § 319.40-8. The following requirements apply upon arrival of the wood chips in the United States:
(A) Upon arrival in the United States, the wood chips must be unloaded by a conveyor that is covered to prevent the chips from being blown by the wind and from accidental spillage. The facility receiving the wood chips must have a procedure in place to retrieve any chips that fall during unloading.
(B) If the wood chips must be transported after arrival, the chips must be covered or safeguarded in a manner that prevents the chips from spilling or falling off the means of conveyance or from being blown off the means of conveyance by wind.
(C) The wood chips must be stored at the facility on a paved surface and must be kept segregated from other regulated articles from the time of discharge from the means of conveyance until the chips are processed. The storage area must not be adjacent to wooded areas.
(D) The wood chips must be processed within 45 days of arrival at the facility. Any fines or unusable wood chips must be disposed of by burning within 45 days of arrival at the facility.
(2)
(i) The wood chips or bark chips must be accompanied by an importer document stating that the wood chips or bark chips were either:
(A) Derived from live, healthy, tropical species of plantation-grown trees grown in tropical areas; or
(B) Fumigated with methyl bromide in accordance with § 319.40-7(f)(3), heat treated in accordance with § 319.40-7(c), or heat treated with moisture reduction in accordance with § 319.40-7(d).
(ii) During shipment to the United States, no other regulated articles (other than solid wood packing materials) are permitted in the holds or sealed containers carrying the wood chips or bark chips. Wood chips or bark chips on the vessel's deck must be in a sealed container;
(iii) The wood chips or bark chips must be free from rot at the time of importation, unless accompanied by an importer document stating that the entire lot was fumigated with methyl bromide in accordance with § 319.40-7(f)(3), heat treated in accordance with § 319.40-7(c), or heat treated with moisture reduction in accordance with § 319.40-7(d).
(iv) Wood chips or bark chips imported in accordance with this paragraph must be consigned to a facility operating under a compliance agreement in accordance with § 319.40-8. The wood chips or bark chips must be burned, heat treated in accordance with § 319.40-7(c), heat treated with moisture reduction in accordance with § 319.40-7(d), or otherwise processed in a manner that will destroy any plant pests associated with the wood chips or bark chips within 30 days of arrival at the facility. If the wood chips or bark chips are to be used for mulching or
(e)
(1)
(2)
Farm Credit Administration (FCA).
Statement on regulatory burden.
This is the second phase of our recent initiative to reduce regulatory burden on the Farm Credit System (FCS or System). Many System institutions responded to our August 1998 request for comments by identifying regulations that they considered burdensome. We deleted several unnecessary or obsolete regulations in the first phase of this project. This document informs the public of those regulations that we will retain without amendment because they either: Implement or interpret the Farm Credit Act of 1971, as amended (Act); or protect the safety and soundness of the System. We also identify pending or future actions that will respond to remaining regulatory burden issues.
On August 18, 1998, we published a document in the
In the first phase of our effort to reduce regulatory burden on the FCS, we repealed or revised 16 regulations.
The purpose of this document is to inform you of those regulations that we will retain without amendment. In most cases, these regulations are either required by statute or are necessary to ensure the safety and soundness of System institutions. For these reasons, the FCA will not make the suggested changes to the following regulations: §§ 613.3020; 613.3030; 613.3300; 614.4200(b)(1); 614.4335(c)(1)(i); 614.4359; and 614.4920. The next section explains our reasons for retaining these regulations.
Seven commenters asked us to amend § 613.3020 so the FCS can finance farm-related businesses that supply only goods to farmers and ranchers. Sections 1.11(c)(1) and 2.4(a)(3) of the Act limit eligibility to businesses that furnish farm-related services to farmers and ranchers. Businesses that sell only farm-related goods to agricultural producers do not qualify for FCS financing under these provisions of the Act. Therefore, we cannot grant this request.
Two Farm Credit banks and one association asked us to amend § 613.3020(b)(2) to allow businesses that derive less than 50 percent of their income from farm-related services to obtain System financing for all of their credit needs. The FCA updated this regulation in 1997 to expand financing opportunities for farm-related businesses that offer both goods and services. At that time, the FCA Board determined that a 50-percent threshold gave appropriate effect to the Act.
Many System institutions assert that § 613.3030 unnecessarily restricts the System's ability to finance housing for rural residents who are not farmers,
Three Farm Credit banks and the Council asked us to repeal § 613.3030(c). Under this provision, FCS banks and associations can extend credit to eligible rural homeowners only for the purposes of buying, building, remodeling, repairing or improving rural homes, or refinancing the existing indebtedness on such homes. The commenters want us to remove this restriction so eligible non-farm rural homeowners can borrow against the equity in their homes and use the loan proceeds for any purpose. We thoroughly addressed this issue when we developed § 613.3030 during an extensive rulemaking that ended in 1997.
A Farm Credit bank requested changes to § 613.3300, which governs FCS participation in loans that non-System lenders make to similar entities. Under sections 3.1(11)(B) and 4.18A of the Act, similar entities are parties that are ineligible to borrow directly from System banks and associations but derive most of their income from, or have most of their assets invested in, the same activities as eligible borrowers.
The bank wants us to revise the rule so the FCS can make loans directly to similar entities. We cannot grant this request because sections 3.1(11)(B) and 4.18A of the Act do not authorize Farm Credit banks and associations to lend directly to similar entities. These statutory provisions specify that System institutions may only participate in credits that non-System lenders extend to similar entities. Further, sections 3.1(11)(B)(i)(bb) and 4.18A(b)(2) of the Act limit System participation in similar entity loans to less than 50 percent of the principal.
Three Farm Credit banks, one association, and the Council asked us to repeal a provision in § 614.4200(b)(1) that requires Farm Credit banks, Federal land credit associations, and agricultural credit associations to secure their long-term mortgage loans with a first lien on the borrower's real estate. Section 1.7(a)(1) of the Act expressly requires FCS long-term mortgage lenders to take a first lien on the borrower's property in a rural area as security for the loan. Thus, this regulation cannot be repealed. Additionally, failure to secure a long-term mortgage loan with a first lien on the security property may be an unsafe and unsound practice. However, long-term mortgage lenders may still take additional collateral without a first lien, as an abundance of caution.
Currently, § 614.4335(c)(1)(i) allows borrowers whose loans are sold within the FCS to decide whether to hold voting stock in the association that bought or sold their loans. Two Farm Credit banks, two associations, and the Council requested a revision that would allow System institutions involved in the transactions, rather than the borrower, to make this choice. We believe it is the right of a stockholder to elect whether to hold stock in a selling or purchasing FCS institution. This shareholder right is a basic tenant of FCS cooperative principles and this provision ensures that farmers, ranchers, and aquatic producers have the right to participate in the affairs of the FCS association of their choice when their loans are sold within the System.
Two Farm Credit banks, one association, and the Council asked us to revise the attribution rules for calculating lending limits. These commenters claim that the current regulation, § 614.4359, is confusing. The FCA is fully committed to the plain language goals of the National Performance Review. Therefore, we plan to rewrite these regulations so they are easier to understand and apply. However, we do not plan to make substantive changes to the attribution rules at this time. We believe they protect the safety and soundness of System banks and associations by limiting their exposure to risk from any one borrower or a group of related borrowers. Additionally, our existing regulation is consistent with the approach of other Federal bank regulatory agencies.
Two Farm Credit banks asked us to exempt certain farm and ranch outbuildings and commercial agribusiness firms from flood insurance requirements. The National Flood Insurance Reform Act of 1994 (1994 Reform Act) requires flood insurance for all buildings that secure loans made by the FCS, commercial banks, credit unions, and savings associations if those buildings are in areas that the Federal Emergency Management Agency deems to be in special flood hazard areas. The 1994 Reform Act offers no flexibility for the FCA to make regulatory exclusions for farm and ranch outbuildings, or commercial agribusiness firms. Furthermore, we joined with five other Federal bank regulatory agencies to ensure that the same flood insurance rules apply to commercial banks, savings associations, credit unions, and the FCS. Therefore, we are unable to repeal § 614.4920(b) because it is a statutory requirement.
We will address all remaining regulatory burden issues that System institutions raised during the comment period in separate regulatory projects. The comments indicate that some System institutions may need guidance about how some regulations mentioned in Part II of this statement apply in certain situations. We hope to clarify these regulations in the future. When we complete our efforts, the regulatory burdens on the System will be reduced. However, we will maintain those regulations that are necessary to implement the Act and are critical for the safety and soundness of the System. Our approach will enable the FCS to continue to provide much needed credit to America's farmers, ranchers, aquatic producers, their cooperatives and other rural residents.
National Credit Union Administration (NCUA).
Final rule.
NCUA is amending its rule pertaining to secondary capital accounts for low-income designated credit unions to conform it to the recently issued prompt corrective action rule (PCA). Under PCA, NCUA has discretionary authority, under certain circumstances, to prohibit a credit union from paying principal, dividends or interest on the credit union's secondary capital accounts established after August 7, 2000.
This rule is effective August 7, 2000.
National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Frank S. Kressman, Staff Attorney, Division of Operations, Office of General Counsel, at the above address or telephone: (703) 518-6540.
Federal credit unions that serve predominantly low-income members may be designated by NCUA as low-income credit unions (LICUs). LICUs play an important role in providing financial services to low-income individuals and communities for whom these services are often unavailable. LICUs often find it difficult, however, to accumulate capital due to the limited resources of their members. To enhance LICUs' ability to build capital, § 701.34 of NCUA's regulations permits LICUs to offer uninsured secondary capital accounts to nonnatural person members and nonmembers. 12 CFR § 701.34.
Section 701.34 provides that funds in the secondary capital account must be available to cover operating losses realized by the credit union that exceed its net available reserves and undivided earnings. It also provides that, to the extent secondary capital account funds are used to cover operating losses, the credit union cannot replenish those funds under any circumstances.
In 1998, Congress amended the Federal Credit Union Act to establish minimum capital standards for federally-insured credit unions. NCUA was required to adopt, by regulation, a PCA system to restore the capital level of credit unions that become inadequately capitalized. The NCUA Board has established, among other things, a comprehensive framework of mandatory and discretionary supervisory actions indexed to defined net worth categories. 65 FR 8559 (February 18, 2000).
Within that framework, PCA distinguishes “new” credit unions, those that have been in operation less than 10 years and have $10 million or less in assets, from other credit unions. 12 U.S.C. 1790d(o)(4). New credit unions are subject to an alternative system of PCA with net worth categories that differ from those applicable to other credit unions. 12 U.S.C. 1790d(b)(2)(A).
A credit union, other than a new credit union, that has a net worth ratio of less than 2% is categorized as “critically undercapitalized”. Section 702.204(b)(11) of the PCA rules permits NCUA to take discretionary action against critically undercapitalized credit unions. Specifically, it provides that:
Beginning 60 days after the effective date of classification of a credit union as “critically undercapitalized,” [NCUA has the discretion to] prohibit payments of principal, dividends or interest on the credit union's uninsured secondary capital accounts established after August 7, 2000, except that unpaid dividends or interest shall continue to accrue under the terms of the account to the extent permitted by law * * *.
New credit unions with net worth ratios of less than 6% are categorized as “moderately capitalized” (3.5%-5.99%), “marginally capitalized” (2%-3.49%), “minimally capitalized” (0%-1.99%) or “uncapitalized” (less than 0%). 12 CFR 702.302(c). Sections 702.304(b) and 702.305(b) of the PCA rules permit NCUA to take discretionary actions against new credit unions that fall within these categories. Specifically, each provides that:
[T]he NCUA Board may, by directive, take one or more of the actions prescribed in § 702.204(b) [of the PCA rules, including the prohibition of payments on secondary capital accounts] if the credit union's net worth ratio has not increased consistent with its then-present business plan, or the credit union has failed to undertake any mandatory supervisory action prescribed in paragraph (a) of this section.
The below amendments conform the secondary capital rules to the PCA rules.
The NCUA Board has issued this as a final rule effective August 7, 2000. There is a strong public interest in having secondary capital rules in place that are consistent with and conform to the provisions of PCA. As part of the PCA rulemaking process, notice of and an opportunity to comment on the below amendments to the secondary capital rule were given in compliance with the Administrative Procedure Act (5 U.S.C. 551) (APA). 63 FR 57938 (October 29, 1998); 64 FR 27090 (May 18, 1999); 64 FR 44663 (August 17, 1999); 65 FR 8559 (February 18, 2000). Comments pertaining to these amendments were incorporated into PCA. Additionally, these conforming amendments are being published far in advance of the 30 days required by Section 553(d) of the APA (5 U.S.C. 553(d)) as neither PCA nor the conforming amendments are effective until August 7, 2000. Accordingly, for good cause, the Board finds that, with respect to the conforming amendments, NCUA has complied with the notice and public procedure requirements of the APA. The Board also finds that additional notice and public procedure would be duplicative and excessive and, therefore, under 5 U.S.C. 553(b)(3)(B), are impracticable, unnecessary, and contrary to the public interest.
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact agency rulemaking may have on a substantial number of small credit unions. For purposes of this analysis, credit unions under $1 million in assets are considered small credit unions. As of June 30, 1999, there were 1,690 small credit unions with a total of $807.3 million in assets, having an average size of $0.5 million. Small credit unions make up 15.6% of all credit unions, but only 0.2% of all credit union assets.
It is anticipated that this final rule will effect relatively few small credit unions. It will apply only to those credit unions that establish secondary capital accounts after August 7, 2000 that then become classified as critically undercapitalized or otherwise trigger potential discretionary action under PCA. Even then, corrective action will only be taken where NCUA chooses to exercise its discretion to do so. NCUA has determined that this rule will not have a significant economic impact on a substantial number of small credit unions.
NCUA has determined that these amendments to § 701.34 do not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies
NCUA has determined that this rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the APA. 5 U.S.C. 551. The Office of Management and Budget has determined that this rule is not a major rule for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.
Credit unions, Reporting and recordkeeping requirements.
12 U.S.C. 1752(5), 1755, 1756, 1757, 1759, 1761a, 1761b, 1766, 1767, 1782, 1784, 1787, and 1789. Section 701.6 is also authorized by 31 U.S.C. 3717. Section 701.31 is also authorized by 15 U.S.C. 1601
(b) * * *
(12) As provided in § 702.204(b)(11) of this chapter, 60 days after the effective date of a credit union being classified as “critically undercapitalized” under NCUA's prompt corrective action rules, the NCUA Board may prohibit payments of principal, dividends or interest on the credit union's uninsured secondary capital accounts established after August 7, 2000, except that unpaid dividends or interest shall continue to accrue under the terms of the account to the extent permitted by law.
(13) As provided in §§ 702.304(b) and 702.305(b) of this chapter, the NCUA Board may prohibit payments of principal, dividends or interest on the uninsured secondary capital accounts established after August 7, 2000 of a “moderately capitalized”, “marginally capitalized”, “minimally capitalized” or “uncapitalized” credit union if the credit union's net worth ratio has not increased consistent with its then-present business plan, or the credit union has failed to undertake any mandatory supervisory action prescribed in §§ 702.304(a) or 702.305(a) of this chapter. If NCUA takes this action, unpaid dividends or interest shall continue to accrue under the terms of the account to the extent permitted by law.
• The NCUA may prohibit payments of principal, dividends or interest on ____ (name of credit union) uninsured secondary capital accounts established after August 7, 2000, if ____ (name of credit union) has been in operation less than 10 years and has $10 million or less in assets and the provisions of § 701.34(b)(13) of NCUA's regulations are met, or, if ____ (name of credit union) has been in operation for 10 years or more or has more than $10 million in assets and the provisions of § 701.34(b)(12) of NCUA's regulations are met.
National Credit Union Administration (NCUA).
Final rule.
NCUA is amending its regulations that implement the Truth in Savings Act (TISA). This final rule allows credit unions to deliver periodic statement disclosures required by NCUA's regulations in electronic form if the member agrees to this form of delivery.
This rule is effective May 22, 2000.
National Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
Frank S. Kressman, Staff Attorney, Division of Operations, Office of General Counsel, at the above address or telephone: (703) 518-6540.
Part 707 of NCUA's regulations implements TISA. 12 CFR part 707. The purpose of part 707 and TISA is to assist members in making meaningful comparisons among accounts offered by credit unions and other financial institutions. Part 707 and TISA require, among other things, disclosure of yields, fees and other terms concerning share accounts to members at account opening, upon request, when changes in terms occur and in periodic statements. Many of these disclosures must be written. Many laws requiring that information be in writing consider information in electronic form to be written. Information produced, stored, or communicated by computer is also generally considered to be a writing, where visual text is involved.
The Board of Governors of the Federal Reserve System (Federal Reserve) issued an interim rule amending its Regulation DD, which implements TISA. That rule allows depository institutions to deliver periodic statement disclosures required by Regulation DD in electronic form if the consumer agrees to that form of delivery. 64 FR 49846 (September 14, 1999). In doing so, the Federal Reserve stated that electronic delivery of these kinds of disclosures will reduce paperwork and costs for institutions and may benefit consumers by allowing them to receive their periodic account statements, including required
The Federal Reserve's interim rule permits depository institutions to deliver periodic statement disclosures electronically if the consumer agrees to this method of delivery, but does not specifically discuss what constitutes a valid agreement between the consumer and depository institution. The Federal Reserve has stated that whether the parties have an agreement is to be determined by state law. It has also stated that consumers should be clearly informed when they consent to electronic delivery of periodic statements and disclosures. The Federal Reserve has further stated that the periodic statement must be provided in a form that can be displayed as visual text and must be clear and conspicuous and in a form that the consumer can retain.
The Federal Reserve's interim rule applies only to periodic statement disclosures. Other disclosures required by TISA and Regulation DD may not be delivered in electronic form, however, the Federal Reserve has issued a proposal addressing electronic delivery of these other disclosures. 64 FR 49740 (September 14, 1999). Because TISA requires NCUA to issue rules substantially similar to those issued by the Federal Reserve, NCUA will continue to follow the development of the Federal Reserve's regulation in this area. As in the past, when the Federal Reserve has issued a final or interim final rule, the NCUA will act to issue a substantially similar rule for credit unions.
TISA requires NCUA to promulgate regulations substantially similar to those promulgated by the Federal Reserve. 12 U.S.C. 4311(b). In doing so, NCUA is to take into account the unique nature of credit unions and the limitations under which they may pay dividends on member accounts. In compliance with TISA, NCUA issued an interim final rule with request for comments in November 1999 that is substantially similar to the above rule issued by the Federal Reserve. 64 FR 66355 (November 26, 1999).
The NCUA Board received eight comment letters regarding the interim final rule: four from credit union trade associations; two from federal credit unions; one from a state credit union; and one from an association of state credit union supervisors. The commenters unanimously supported the interim rule.
Three commenters, however, suggested the rule provide additional clarification with respect to the agreement between a credit union and its member that permits electronic delivery of periodic statement disclosures. Specifically, they wanted guidance on what constitutes a valid agreement and how a member's consent may be obtained. As articulated by the Federal Reserve, the rule purposefully does not define what constitutes a valid agreement or dictate a method of obtaining a member's consent. This is to provide maximum flexibility to credit unions and their members. Whether the parties have a valid agreement is appropriately determined by state law.
Two commenters suggested that a credit union should be permitted to deliver electronic periodic statement disclosures to an e-mail address designated by the member or to an area on a website accessible to the member. NCUA intends for credit unions to have flexibility in how they deliver these electronic disclosures. Both of these methods, among others, are permissible under the rule.
The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact agency rulemaking may have on a substantial number of small credit unions. For purposes of this analysis, credit unions under $1 million in assets are considered small credit unions. As of June 30, 1999, there were 1,690 small credit unions with a total of $807.3 million in assets, having an average size of $0.5 million. Small credit unions make up 15.6% of all credit unions, but only 0.2% of all credit union assets.
This final rule provides credit unions with an optional and alternative method of delivering certain required disclosures. Credit unions are free to choose not to utilize this alternative. Credit unions that choose to use this alternative will likely realize a reduction in their costs of delivery as a result. The NCUA has determined and certifies that this final rule will not have a significant economic impact on a substantial number of small credit unions.
NCUA has determined that these amendments to part 707 do not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget.
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule will apply to all federally-insured credit unions, but it will not have substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
NCUA has determined that this rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998).
The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. 5 U.S.C. 551. The Office of Management and Budget has determined that this rule is not a major rule for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.
Advertising, Consumer protection, Credit unions, Reporting and recordkeeping requirements, Truth in savings.
Federal Aviation Administration, DOT.
Final rule; rescission.
This amendment rescinds Airworthiness Directive (AD) 99-23-22 R1, which is applicable to various transport category airplanes equipped with Mode “C” transponder(s) with single Gillham code altitude input. That AD requires repetitive tests to detect discrepancies of the Mode “C” transponder(s), air data computer, and certain wiring connections; and corrective actions, if necessary. The requirements of that AD were intended to prevent false advisories that direct the flightcrew to change course and either climb or descend, which could result in the flightcrew deviating the airplane from its assigned flight path, and a possible mid-air collision. Since the issuance of that AD, test data have been collected that demonstrate that the repetitive tests are unnecessary.
April 20, 2000.
Peter Skaves, Aerospace Engineer, Airplane and Flight Crew Interface Branch, ANM-111, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2795; fax (425) 227-1320.
On November 4, 1999, the Federal Aviation Administration (FAA) issued AD 99-23-22, amendment 39-11418 (64 FR 61493, November 12, 1999), as revised by AD 99-23-22 R1, amendment 39-11473 (64 FR 70181, December 16, 1999), applicable to various transport category airplanes equipped with Mode “C” transponder(s) with single Gillham code altitude input. That AD requires repetitive tests to detect discrepancies of the Mode “C” transponder(s), air data computer, and certain wiring connections; and corrective actions, if necessary. That action was prompted by reports that, during level flight, the Traffic Alert Collision Avoidance System (TCAS II) issued false advisories that directed the flightcrew to change course and either climb or descend. Such false advisories, if not corrected, could result in the flightcrew deviating the airplane from its assigned flight path and a possible mid-air collision.
The compliance time for the initial test of the Mode “C” transponder(s) with single Gillham altitude code input, as required by AD 99-23-22 R1, has passed. Therefore, the FAA assumes that the test has been conducted at least once, and all applicable corrective actions have been accomplished, on all transport category airplanes affected by that AD. The following is a summary of the airplane inspections and test results:
The results of the transponder tests required by AD 99-23-22 R1 revealed that numerous Mode “C” transponders failed the test, and many of the Mode “C” test failures have been determined to be caused by a particular transponder type. All other test failures reported by operators appear to be random and isolated.
The FAA concludes that continued repetitive tests on the applicable airplane models listed in AD 99-23-22 R1 are unnecessary since the corrective actions have been accomplished on all transport category airplanes identified in that AD.
In addition, the FAA has determined that the repetitive performance of the tests required by AD 99-23-22 R1 may result in increased or accelerated component wear, which could contribute to reports of incorrect airplane altitude.
Over 50 percent of the airplane test failures have been reported by operators to be caused by Mode “C” transponders. The FAA is conducting further reviews to determine whether a systematic root cause failure of that Mode “C” transponder exists. Based on the results of these reviews, the FAA may consider further rulemaking to address potential problems concerning the Mode “C” transponder.
Because the results of the tests required by AD 99-23-22 R1 have identified and corrected the causes of the identified unsafe condition, and because repetitive performance of the test may increase or accelerate component wear and contribute to reports of incorrect airplane altitude, the FAA has determined that it is necessary to rescind AD 99-23-22 R1 to prevent operators from performing unnecessary and potentially harmful repetitive tests.
Since this action rescinds a requirement to perform unnecessary actions, it has no adverse economic impact and imposes no additional burden on any person. Therefore, notice and public procedures hereon are unnecessary, and the rescission may be made effective upon publication in the
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
49 U.S.C. 106(g), 40113, 44701.
F28 Mark 0100
F28 Mark 1000-4000
This rescission is effective April 20, 2000.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment supersedes an existing airworthiness directive (AD), applicable to certain McDonnell Douglas Model MD-11 series airplanes, that currently requires the deactivation of the forward and center cargo control units (CCU). That amendment was prompted by a report of failure of a CCU, which produced overheating of the electrical pins inside the CCU; the subsequent release of hot gases and flames ignited an adjacent insulation blanket. This amendment expands the applicability of the existing AD to include additional airplanes. The actions specified in this AD are intended to prevent overheating of the electrical pins inside the CCU's and subsequent release of hot gases and flames, which could result in smoke and fire in the cargo compartment.
Effective May 5, 2000. Comments for inclusion in the Rules Docket must be received on or before June 19, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-97-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
Information pertaining to this amendment may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington; or at the FAA, Transport Airplane Directorate, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California.
Brett Portwood, Aerospace Engineer, Systems and Equipment Branch, ANM-130L, FAA, Transport Airplane Directorate, Los Angeles Aircraft Certification Office, 3960 Paramount Boulevard, Lakewood, California 90712-4137; telephone (562) 627-5350; fax (562) 627-5210.
On February 28, 2000, the FAA issued AD 2000-05-01, amendment 39-11610 (65 FR 11459, March 3, 2000), applicable to certain McDonnell Douglas Model MD-11 series airplanes, to require the deactivation of the forward and center cargo control units (CCU). That action was prompted by a report of failure of a CCU, which produced overheating of the electrical pins inside the CCU; the subsequent release of hot gases and flames ignited an adjacent insulation blanket. The actions required by that AD are intended to prevent such conditions, which could result in smoke and fire in the cargo compartment.
The incident that prompted AD 2000-05-01 is not considered to be related to an accident that occurred off the coast of Nova Scotia involving a McDonnell Douglas Model MD-11 series airplane. The cause of that accident is still under investigation.
The FAA, in conjunction with Boeing and operators of Model MD-11 series airplanes, is continuing to review all aspects of the service history of those airplanes to identify potential unsafe conditions and to take appropriate corrective actions. This AD is one of a series of actions identified during that process. The process is continuing and the FAA may consider additional rulemaking actions as further results of the review become available.
The applicability statement of AD 2000-05-01 lists the serial numbers of the affected airplanes, which were provided by the airplane manufacturer. Since the issuance of that AD, the airplane manufacturer has informed the FAA that it inadvertently provided two incorrect airplane serial numbers (i.e., 48679 and 58563); those serial numbers do not exist. The correct serial numbers of those two airplanes are 48769 and 48563. The FAA has determined that affected airplanes having serial numbers 48769 and 48563 also are subject to the identified unsafe condition.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of this same type design, this AD supersedes AD 2000-05-01 to continue to require the deactivation of the forward and center CCU's. This AD also expands the applicability of the existing AD to include additional airplanes.
This is considered to be interim action. The FAA is currently considering requiring a modification of the CCU assembly would constitute terminating action for the requirements of this AD. However, the planned compliance time for the installation of the modification is sufficiently long so that notice and opportunity for prior public comment will be practicable.
Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-97-AD.” The postcard will be date stamped and returned to the commenter.
The regulations adopted herein will not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (d) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent overheating of the electrical pins inside the cargo control units (CCU) and subsequent release of hot gases and flames, which could result in smoke and fire in the cargo compartment, accomplish the following:
(a) For Group 1 airplanes having serial numbers other than that identified in paragraph (c) of this AD: Within 15 days after March 20, 2000 (the effective date of AD 2000-05-01, amendment 39-11610), deactivate the forward and center CCU's in accordance with the following procedures:
(1) Remove the access panel to the forward cargo compartment CCU circuit breaker panel located at fuselage station 1009.300 (right side looking aft). Pull and collar the following circuit breakers:
B1-506
B1-485
B1-500
B1-489
B1-480
B1-495
B1-488
B1-481
B1-499
B1-487
B1-498
B1-490
B1-486
B1-482
(2) Remove the access panel to the center cargo compartment CCU circuit breaker panel located at fuselage station 1701.000 (right side looking aft). Pull and collar the following circuit breakers:
B1-552
B1-758
B1-753
B1-762
B1-518
B1-764
B1-761
B1-519
B1-752
B1-760
B1-751
B1-763
B1-759
B1-520
(b) For Group 2 airplanes having serial numbers other than that identified in paragraph (c) of this AD: Within 15 days after March 20, 2000, deactivate the forward and center CCU's in accordance with the following procedures:
(1) Remove the access panel to the forward cargo compartment CCU circuit breaker panel located at fuselage station 1009.300 (right side looking aft). Pull and collar the following circuit breakers:
B1-506
B1-485
B1-500
B1-489
B1-480
B1-495
B1-488
B1-481
B1-499
B1-487
B1-498
B1-490
B1-486
B1-482
(2) Remove the access panel to the center cargo compartment CCU circuit breaker panel located at fuselage station 1701.000 (right side looking aft). Pull and collar the following circuit breakers:
B1-552
B1-758
B1-753
B1-762
B1-518
B1-764
B1-761
B1-519
B1-752
B1-760
B1-751
B1-759
B1-520
(c) For Group 1 airplane, serial number 48769, and for Group 2 airplane, serial number 48563: Within 15 days after the effective date of this AD, accomplish the actions specified in either paragraph (a) or (b) of this AD, as applicable.
(d)(1) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office (ACO), FAA, Transport Airplane Directorate. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, Los Angeles ACO.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles ACO.
(2) Alternative methods of compliance, approved previously in accordance with AD 2000-05-01, amendment 39-11610, are approved as alternative methods of compliance with paragraph (a) or (b) of this AD, as applicable.
(e) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
(f) This amendment becomes effective on May 5, 2000.
Federal Aviation Administration, DOT.
Final rule; request for comments.
This amendment adopts a new airworthiness directive (AD), applicable to Robinson Helicopter Company (RHC) Model R22 helicopters. This action requires replacing certain serial number sprag clutches with an airworthy sprag clutch as specified in this AD. This amendment is prompted by several reports of clutch assemblies with cracked or fractured sprag ends. The actions specified by this AD are intended to prevent a sprag clutch failure, loss of main rotor RPM during autorotation, and subsequent loss of control of the helicopter.
Effective May 5, 2000. Comments for inclusion in the Rules Docket must be received on or before June 19, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 99-SW-69-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.
Elizabeth Bumann, Aviation Safety Engineer, FAA, Los Angeles Aircraft Certification Office, 3960 Paramount Blvd., Lakewood, California 90712-4137, telephone (562) 627-5265; fax (562) 627-5210.
On April 5, 1999, the FAA issued AD 99-07-17 (64 FR 17966, April 13, 1999), Amendment 39-11126, to require inserting a Special Pilot Caution into the Rotorcraft Flight Manual (RFM) to alert pilots of the potential for the sprag clutch failing to overrun during autorotation maneuvers. The Special Pilot Caution was an interim measure until the manufacturer developed a permanent corrective action. Since the sprag clutch is such a critical component of the rotor drive system, the FAA now believes that the affected sprag clutches need to be replaced within 30 days or 50 hours time-in-service (TIS), whichever occurs first. Therefore, this AD requires replacing sprag clutch, part number (P/N) A188-2, serial numbers (S/N) 3708 through 3757 inclusive, 3808 through 3893 inclusive, and 3908 through 4207 inclusive, with sprag clutch, P/N A188-2, S/N 4208 or higher. This amendment is prompted by several reports of clutch assemblies, including one from the wreckage of a helicopter, with cracked or fractured sprag ends. The actions specified by this AD are intended to prevent a sprag clutch failure, loss of main rotor RPM during autorotation, and subsequent loss of control of the helicopter.
The FAA has reviewed RHC Service Bulletin SB-85, dated March 22, 1999, which describes procedures for replacing sprag clutch, part number (P/N) A188-2, serial numbers (S/N) 3708 through 3757 inclusive, 3808 through 3893 inclusive, and 3908 through 4207 inclusive.
Since an unsafe condition has been identified that is likely to exist or develop on other Robinson R22 helicopters of the same type design, this AD is being issued to prevent a sprag clutch failure, loss of main rotor RPM during autorotation, and subsequent loss of control of the helicopter. The short compliance time involved is required because the previously described critical unsafe condition can adversely affect the controllability of the helicopter after an actual engine failure. Therefore, replacing sprag clutch, P/N A188-2, serial numbers (S/N) 3708 through 3757 inclusive, 3808 through 3893 inclusive, and 3908 through 4207 inclusive, with sprag clutch, P/N A188-2, S/N 4208 and higher, is required within 30 calendar days or 50 hours TIS after the effective date of this AD, whichever occurs first, and this AD must be issued immediately.
Since a situation exists that requires the immediate adoption of this regulation, it is found that notice and opportunity for prior public comment hereon are impracticable, and that good cause exists for making this amendment effective in less than 30 days.
The FAA estimates that 200 helicopters will be affected by this proposed AD, that it will take approximately 3 work hours to replace a sprag clutch, and that the average labor rate is $60 per work hour. Required parts will cost approximately $2,500 per helicopter. Based on these figures, the total cost impact of the AD on U.S. operators is estimated to be $536,000.
Although this action is in the form of a final rule that involves requirements affecting flight safety and, thus, was not preceded by notice and an opportunity for public comment, comments are invited on this rule. Interested persons are invited to comment on this rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified under the caption
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the rule that might suggest a need to modify the rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report that summarizes each FAA-public contact concerned with the substance of this AD will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this rule must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 99-SW-69-AD.” The postcard will be date stamped and returned to the commenter.
The regulations adopted herein will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this final rule does not have federalism implications under Executive Order 13132.
The FAA has determined that this regulation is an emergency regulation that must be issued immediately to correct an unsafe condition in aircraft, and that it is not a “significant regulatory action” under Executive Order 12866. It has been determined further that this action involves an emergency regulation under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979). If it is determined that this emergency regulation otherwise would be significant under DOT Regulatory Policies and Procedures, a final regulatory evaluation will be prepared and placed in the Rules Docket. A copy of it, if filed, may be obtained from the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
49 U.S.C. 106(g), 40113, 44701.
This AD applies to each helicopter identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For helicopters that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent sprag clutch failure, loss of main rotor RPM during autorotation, and subsequent loss of control of the helicopter, accomplish the following:
(a) Replace sprag clutch, P/N A188-2, S/N 3708 through 3757 inclusive, 3808 through 3893 inclusive, and 3908 through 4207 inclusive, with sprag clutch, P/N A188-2, S/N 4208 or higher.
(b) Remove from the Rotorcraft Flight Manual the Special Pilot Caution, revised March 22, 1999, contained in Robinson Helicopter Company R22 Service Bulletin SB-85, dated March 22, 1999, or the Special Pilot Caution insert in the Normal Procedures Section of the Rotorcraft Flight Manual between pages P.4-8 and P.4-9 required by AD 99-07-17, Docket No. 99-SW-24-AD, Amendment 39-11126 (64 FR 17966, April 13, 1999), as applicable.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Los Angeles Aircraft Certification Office. Operators shall submit their requests through an FAA Principal Maintenance Inspector, who may concur or comment and then send it to the Manager, Los Angeles Aircraft Certification Office.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Los Angeles Aircraft Certification Office.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the helicopter to a location where the requirements of this AD can be accomplished.
(e) This amendment becomes effective on May 5, 2000.
U.S. Customs Service, Department of the Treasury.
Final rule.
This document amends the Customs Regulations pertaining to the field organization of Customs by correcting the boundary description of Gramercy, Louisiana.
April 20, 2000.
Harold Singer, Chief, Regulations Branch, U.S. Customs Service, 202-927-2268.
Customs established a port of entry of Gramercy, Louisiana, by a final rule document published as Treasury Decision (T.D.) 82-93 in the
On May 31, 1984, Customs published in the
In a document published in the
The Customs Regulations correctly reflected that the port limits of Gramercy were as set forth in T.D. 82-93 until T.D. 95-77 was published in the
This document corrects the error by removing the reference “(Restated in T.D. 84-126)” in the “Limits of port” column adjacent to the entry of Gramercy in the “Ports of entry column” under the State of Louisiana in section 101.3(b), Customs Regulations.
Because this document relates to agency organization and management and merely corrects the geographical description of a port, it is not subject to the notice and public procedure requirements of 5 U.S.C. 553. For the same reasons, pursuant to 5 U.S.C. 553(d)(3), a delayed effective date is not required.
Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, this document is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Agency organization matters are exempt from consideration under Executive Order 12866.
The principal author of this document was Janet L. Johnson. However, personnel from other offices participated in its development.
Customs duties and inspection, Customs ports of entry, Exports, Imports, Organization and functions (Government agencies).
5 U.S.C. 301, 19 U.S.C. 2, 66, 1202 (General Note 20, Harmonized Tariff Schedule of the United States), 1623, 1624.
Sections 101.3 and 101.4 also issued under 19 U.S.C. 1 and 58b;
Department of Justice.
Final rule.
The Department of Justice is exempting a Privacy Act system of records from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act. 5 U.S.C. 552a. This system of records is maintained by the Immigration and Naturalization Service (INS) and is entitled “Attorney/Representative Complaint/Petitiion Files, JUSTICE/INS-022.”
Information in this system relates to complaints filed against nonagency attorneys and/or representatives who have engaged in unethical or unprofessional activities. The exemptions are necessary to avoid interference during the conduct of criminal, civil, or administrative actions or investigations. Specifically, the exemptions are necessary to prevent subjects of investigations from frustrating the investigatory process. The exemptions are necessary to avoid interference during the conduct of civil or administrative actions or investigations.
April 20, 2000.
Mary Cahill—202-307-1823.
On December 16, 1999 (64 FR 70203) a proposed rule was published in the
This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that the order will not have “a significant economic impact on a substantial number of small entities.”
Administrative Practices and Procedures, Courts, Freedom of Information Act, Government in the Sunshine Act, and the Privacy Act.
5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534, 31 U.S.C. 3717, 9701.
(k) The Attorney/Representative Complaint/Petition File (JUSTICE/INS-022) system of records is exempt under the provisions of 5 U.S.C. 552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), and (8); and (g); but only to the extent that this system contains records within the scope of subsection (j)(2), and to the extent that records in this system are subject to exemption therefrom. In addition, this system of records is also exempt in part under the provisions of 5 U.S.C. 552a (k)(2) from subsections (c)(3); (d); and (e)(1), but only to the extent that this system contains records within the scope of subsection (k)(2), and to the extent that records in this system are subject to exemption therefrom.
(l) The following justifications apply to the exemptions from particular subsections:
(1) From subsection (c)(3) for reasons stated in paragraph (h)(1) of this section.
(2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of this section.
(3) From the access and amendment provisions of subsection (d) for reasons stated in paragraph (h)(3) of this section.
(4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of this section.
(5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of this section.
(6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of this section.
(7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of this section.
(8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of this section.
(9) From subsection (g) to the extent that the system is exempt from the access and amendment provisions of subsection (d).
Department of Justice.
Final rule.
The Department of Justice is exempting a Privacy Act system of records from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act, 5 U.S.C. 552a. This system of records is maintained by the Immigration and Naturalization Service (INS) and is entitled “Worksite Enforcement Activity Record and Index (LYNX), JUSTICE/INS-025.”
Information in this system relates to an enforcement inspection or investigation pursued under the Immigration and Nationality Act, Section 274A(e), involving a specific individual employer. The exemptions are necessary to avoid interference during the conduct of criminal, civil, or administrative actions or investigations. Specifically, the exemptions are necessary to prevent subjects of investigations from frustrating the investigatory process. The exemptions are necessary to avoid interference during the conduct of civil or administrative actions or investigations.
April 20, 2000.
Mary Cahill—202-307-1823.
On December 16, 1999 (64 FR 70202) a proposed rule was published in the
This order relates to individuals rather than small business entities. Nevertheless, pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, it is hereby stated that the order will not have “a significant economic impact on a substantial number of small entities.”
Administrative Practices and Procedures, Courts, Freedom of
5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C. 4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.
(m) The Worksite Enforcement Activity and Records Index (LYNX) (JUSTICE/INS-025) system of records is exempt under the provisions of 5 U.S.C. 552a (j)(2) from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (5), and (8); and (g); but only to the extent that this system contains records within the scope of subsection (j)(2), and to the extent that records in this system are subject to exemption therefrom. In addition, this system of records is also exempt in part under the provisions of 5 U.S.C. 552a(k)(2) from subsections (c)(3); (d); and (e)(1), but only to the extent that this system contains records within the scope of subsection (k)(2), and to the extent that records in this system are subject to exemption therefrom.
(n) The following justifications apply to the exemptions from particular subsections:
(1) From subsection (c)(3) for reasons started in paragraph (h)(1) of this section.
(2) From subsection (c)(4) for reasons stated in paragraph (h)(2) of this section.
(3) From the access and amendment provisions of subsection (d) for reasons sated in paragraph (h)(3) of this section.
(4) From subsection (e)(1) for reasons stated in paragraph (h)(4) of this section.
(5) From subsection (e)(2) for reasons stated in paragraph (h)(5) of this section.
(6) From subsection (e)(3) for reasons stated in paragraph (h)(6) of this section.
(7) From subsection (e)(5) for reasons stated in paragraph (h)(7) of this section.
(8) From subsection (e)(8) for reasons stated in paragraph (h)(8) of this section.
(9) From subsection (g) to the extent that the system is exempt from the access and amendment provisions of subsection (d).
Office of Labor-Management Standards, Employment Standards Administration, Labor.
Final rule; correction.
This document contains corrections to information contained in the final rule published on December 21, 1999 (64 FR 71622). That final rule made several technical changes to the annual financial reporting forms filed by labor organizations and to the Department of Labor's regulations in which the reporting forms are prescribed.
January 1, 2000.
Kay H. Oshel, Chief, Division of Interpretations and Standards, Office of Labor-Management Standards, Employment Standards Administration, U.S. Department of Labor, Room N-5605, Washington, DC 20210, (202) 693-0123 (this is not a toll-free number).
The final rule that is the subject of this correction made a number of minor and technical changes to the annual financial reporting forms filed by labor organizations under the Labor-Management Reporting and Disclosure Act of 1959, as amended (Forms LM-2, LM-3, and LM-4), and to the regulations in which the reporting forms are prescribed, 29 CFR part 403. The annual financial reports are also filed by federal sector labor organizations pursuant to the regulations implementing the standards of conduct provisions of the Civil Service Reform Act of 1978, 5 U.S.C. 7120, and the Foreign Service Act of 1980, 22 U.S.C. 1017. The purposes of the final rule were to (1) give notice that the Department has redesigned the reporting forms so that they can be optically scanned and made available on the Internet, and (2) revise the Department's regulations accordingly.
Two inadvertent errors were made in the “Supplementary Information” portion of the final rule of December 21, 1999. First, in describing the impact of the effective date of January 1, 2000 on the reporting requirements, it was incorrectly stated (on page 71623, in the first paragraph of the first column) that “labor organizations will file the new reporting forms and format for fiscal years beginning on and after January 1, 2000.” However, the effective date of January 1, 2000 means that the newly redesigned reporting forms are to be used by labor organizations for fiscal years ending on and after January 1, 2000 rather than for fiscal years beginning on and after January 1, 2000. Thus, for example, for a labor organization whose fiscal year ends March 31, 2000, the annual financial report is due 90 days thereafter (June 29, 2000) using the newly redesigned reporting forms.
The second inadvertent error in the “Supplementary Information” portion of the final rule is that the number of pages in the old and the redesigned Form LM-3 were incorrectly stated (on page 71622, in the second full paragraph of the second column). Form LM-3 had been two pages (not four), and is now four pages (not eight).
There were also two errors in the text of the revised regulation, 29 CFR 403.4(b), which deals with the simplified format which a parent body may use to fulfill the reporting obligation of its subordinate local labor organizations which have no assets, liabilities, receipts, or disbursements. On page 71624, in the third line of the penultimate paragraph of the second column, the reference to “29 CFR 403.4(b)(3) (i)-(vi)” should have been to “29 CFR 403.4(b)(3) (i)-(v)”. Finally, in the ninth line of that paragraph the word “and” should have been inserted before “(v)”.
As published, the final rule inadvertently contains incorrect information which needs to be corrected.
The undersigned has determined that this rulemaking need not be published as a proposed rule, as generally required by the Administrative Procedure Act (APA), 5 U.S.C. 553. This rulemaking makes technical and nonsubstantive corrections and imposes no additional burden on the public. Consequently, there is good cause for finding that notice and public procedure is unnecessary and contrary to the public
The undersigned has determined that good cause exists for waiving the customary requirement for delay in the effective date of a final rule for 30 days following its publication since this rule makes technical and minor corrections to a final rule which is already in effect. See 5 U.S.C. 553(d). Therefore, this final rule correction is effective on the same date as the final rule which is being corrected, January 1, 2000.
The Department of Labor has determined that this rule is not a significant regulatory action as defined in section 3(f) of Executive Order 12866 in that it will not (1) have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities, (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency, (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof, or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in Executive Order 12866.
Because a notice of proposed rulemaking is not required for this rule under 5 U.S.C. 553(b), the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
This rule contains no additional information collection requirements. The information collection requirements in the regulations to which this rule makes technical corrections have been approved by the Office of Management and Budget (OMB control number 1215-0188).
The Department has determined that this final rule is not a “major rule” requiring prior approval by the Congress and the President pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804), because it is not likely to result in (1) an annual effect on the economy of $100 million or more, (2) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
Further, since the Department has determined, for good cause, that publication of a proposed rule and solicitation of comments on this rule is not necessary, under 5 U.S.C. 808(2), this final rule is effective as of the date of the final rule which is being corrected, January 1, 2000, as stated previously in this notice.
For purposes of Section 2 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, as well as Executive Order 12875 (58 FR 58093, October 28, 1993), this rule does not include any federal mandate that may result in increased expenditures by State, local and tribal governments, or increased expenditures by the private sector of more than $100 million.
The Department has reviewed this rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” The rule does not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Labor unions, Reporting and recordkeeping requirements.
Coast Guard, DOT.
Notice of implementation.
This notice puts into effect the permanent regulations for the annual Harvard-Yale Regatta, a rowing competition held on the Thames River in New London, CT. The regulation is necessary to control vessel traffic within the immediate vicinity of the event due to the confined nature of the waterway and anticipated congesttion at the time of the event, thus providing for the safety of life and property on the affected navigable waters.
The regulations in 33 CFR 100.101 are effective on June 10, 2000, from 2:30 p.m. to 8 p.m. If the regatta is cancelled due to weather, this section will be in effect on the following day, Sunday June 11, 2000, from 2:30 p.m. to 8 p.m.
Petty Officer William M. Anderson, Office of Search and Rescue, First Coast Guard District, (617) 223-8460.
This notice implements the permanent special local regulation governing the 2000 Harvard-Yale Regatta. A portion of the Thames River in New London, Connecticut will be closed during the effective period to all vessel traffic except participants, official regatta vessels, and patrol craft. The regulated area is that area of the river between the Penn Central drawbridge and Bartlett's Cove. Additional public notification will be made via the First Coast Guard District Local Notice to Mariners and marine safety broadcasts. The full text of this regulation is found in 33 CFR 100.101.
Coast Guard, DOT.
Temporary final rule.
The Coast Guard is establishing a safety zone encompassing those waters of the Atlantic Ocean within 1,000 yards of the position 43°31′9″ N, 070°11′8″ W and from the water's surface to the seabed floor. This rule is necessary to protect the environment from a diesel fuel spill which may occur from the disturbance of the sunken vessel F/V Jessica Ann, the commercial fishery, and the general public for the hazards associated with the recovery of diesel fuel from a sunken vessel.
This section is effective on April 4, 2000 until July 1, 2000.
Lieutenant R. V. Timme, Chief of Response and Planning, Captain of the Port, Portland at (207) 780-3251.
As authorized by 5 U.S.C. 553, a notice of proposed rulemaking (NPRM) was not published for this regulation. Under 5 U.S.C 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM and for making this rule effective less that 30 days after publication in the
On February 20, 2000, The F/V Jessica Ann sunk in 136 feet of water in the Atlantic Ocean. It is estimated that approximately 10,000 gallons of diesel fuel is on board the vessel. Clean Harbors, Inc. was hired for the clean up and recovery of fuel on board the F/V Jessica Ann. The fuel vents on the vessel were sealed to secure the leak. However, due to inclement weather, fuel recovery has been postponed until favorable weather conditions prevail. The safety zone will be effective on April 4, 2000 until July 1, 2000, Cape Elizabeth, Maine. This regulation establishes a safety zone encompassing those waters of the Atlantic Ocean within 1,000 yards of the position 43°31′9″ N, 070°11′8″ and from the water's surface to the seabed floor. The safety zone will be cancelled following the recovery of the oil remaining on board. This rule is necessary to protect the environment, the commercial fishery, and the general public. Innocent transit through the area within the safety zone is not affected by this regulation and does not require the authorization of the Captain of the Port.
This temporary final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and does not require an assessment of potential costs and benefits under section 6(a)(3) of that order. It has not been reviewed by the Office of Management and Budget under that order. It is not significant under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040; February 26, 1979). The Coast Guard expects the economic impact of this proposal to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary. This conclusion is based on the fact that the proposal has no significant effect on shipping, and its impact on fishing is minimal as it removes a small portion (less than one square mile) of the available fishing grounds from active fishing.
Under the Regulatory Flexibility Act (5 U.S.C. 601
For the reasons addressed under the Regulatory Evaluation above, the Coast Guard expects the impact of this regulation to be minimal and certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601
This rule will affect the following entities, some of which may be small entities: The commercial fishing community intending to fish portions of Cape Elizabeth restricted by the safety zone.
This rule contains no collection of information requirements under the Paperwork Reduction Act (44 U.S.C. 3501
The Coast Guard has analyzed this rule under the principles and criteria contained in Executive Order 113132 and have determined that this rule does not have sufficient federalism implications for Federalism under that order.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An Unfunded Mandate is a regulation that requires a state, local or tribal government or the private sector to incur costs without the Federal government's having first provided the funds to pay those costs. This rule will not impose an Unfunded Mandate.
This rule will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in section 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity and reduce burden.
The Coast Guard has analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not concern an environmental risk to health or risk to safety that may disproportionately affect children.
The Coast Guard has considered the environmental impact of this regulation and concluded that, under Figure 2-1, paragraph 34(g) of Commandant Instruction M16475.1C, this rule is categorically excluded from further environmental documentation. A Categorical Exclusion Determination and an Environmental Analysis Checklist is available in the docket for inspection or copying.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1(g), 6.04-1, 6.04-6 and 160.5; 49 CFR 1.46.
(a)
(b)
(c)
(2) All vessels and persons are prohibited from anchoring, diving, dredging, dumping, fishing, trawling, laying cable, or conducting salvage operations in this zone except as authorized by the Coast Guard Captain of Port, Portland, Maine. Innocent transit through the area within the safety zone is not affected by this regulation and does not require the authorization of the Captain of the Port.
(3) All persons and vessels shall comply with the instructions of the Coast Guard Captain of the Port or the designated on scene patrol personnel. U.S. Coast Guard patrol personnel include commissioned, warrant and petty officers of the Coast Guard. Upon being hailed by a U.S. Coast Guard vessel via siren, radio, flashing light, or other means, the operator of the vessel shall proceed as directed.
Federal Crop Insurance Corporation, USDA.
Proposed rule with request for comments.
The Federal Crop Insurance Corporation (FCIC) proposes to amend the Small Grains Crop Insurance Provisions and the Wheat Crop Insurance Winter Coverage Endorsement. The intended effects of this action are to add provisions for the insurance of Kamut and buckwheat, include additional insurance benefits, clarify existing policy provisions to better meet the needs of the insured, improve actuarial soundness, and restrict the effect of the current Small Grains Crop Insurance Provisions and the Wheat Crop Insurance Winter Coverage Endorsement to the 2000 and prior crop years.
Written comments and opinions on this proposed rule will be accepted until close of business June 19, 2000 and will be considered when the rule is to be made final. Comments on the information collection requirements must be received on or before June 19, 2000.
Interested persons are invited to submit written comments to the Director, Product Development Division, Federal Crop Insurance Corporation, United States Department of Agriculture, 9435 Holmes Road, Kansas City, MO 64131. Comments may also be sent via the Internet to DirectorPDD@rm.fcic.usda.gov. A copy of each response will be available for public inspection and copying from 7 a.m. to 4:30 p.m., CDT, Monday through Friday, except holidays, at the above address.
For further information and a copy of the Cost-Benefit Analysis to the Common Crop Insurance Regulations; Small Grains Crop Insurance Provisions, contact Rob Coultis, Insurance Management Specialist, Research and Development, Product Development Division, Federal Crop Insurance Corporation, at the Kansas City, MO address listed above, telephone (816) 926-7730.
This rule has been determined to be significant for the purposes of Executive Order 12866 and, therefore, it has been reviewed by the Office of Management and Budget (OMB).
A Cost-Benefit Analysis has been completed and is available to interested persons at the Kansas City address listed above. In summary, the analysis finds the effect of proposed changes on crop insurance payments is expected to be small. The greatest impacts are expected from: (1) Providing benefits when damaged winter wheat is planted to a spring crop other than wheat; (2) increasing the amount of replant payments for wheat and providing replant payments for crops that have not had them in the past; and (3) changes to the Wheat Winter Coverage Endorsement.
In accordance with section 3507(j) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501), the information collection and record keeping requirements included in the proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send your written comments to the Office of Information and Regulatory Affairs, OMB, Attention: Desk Officer for RMA, Washington, D.C. 20503. A comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication of this proposed rule.
We are soliciting comments from the public concerning our proposed information collection and record keeping requirements. We need this outside input to help us:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information has practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission responses.)
The collections of information for this rule revise the Multiple Peril Crop Insurance Collections of Information 0563-0053 which expire April 30, 2001.
The Wheat Crop Insurance Winter Coverage Endorsement is revised to: (1) Clarify that the endorsement is available only if the actuarial table provides a premium rate for it; (2) specify that all eligible winter wheat acreage must be insured under the endorsement; (3) increase the coverage amount from 30 to 50 percent of the production guarantee under Option A; (4) clarify that if the insured elects to destroy the crop and plant the acreage to spring wheat, it will be insured under the policy provisions covering spring planted wheat; and (5) change the amount of coverage provided from 100 to 70 percent of the production guarantee under Option B.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.
It has been determined under section 1(a) of Executive Order 13132, Federalism, that this rule does not have sufficient implications to warrant consultation with the States. The provisions contained in this rule will not have a substantial direct effect on States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This regulation will not have a significant impact on a substantial number of small entities. New provisions included in this rule will not impact small entities to a greater extent than large entities. The amount of work required of the insurance companies delivering and servicing these policies will not increase significantly from the amount of work currently required. Therefore, this action is determined to be exempt from the provisions of the Regulatory Flexibility Act (5 U.S.C. 605), and no Regulatory Flexibility Analysis was prepared.
This program is listed in the Catalog of Federal Domestic Assistance under No. 10.450.
This program is not subject to the provisions of Executive Order 12372, which require intergovernmental consultation with State and local officials. See the Notice related to 7 CFR part 3015, subpart V, published at 48 FR 29115, June 24, 1983.
This rule has been reviewed in accordance with Executive Order 12988 on civil justice reform. The provisions of this rule will not have a retroactive effect. The provisions of this rule will preempt State and local laws to the extent such State and local laws are inconsistent herewith. The administrative appeal provisions published at 7 CFR part 11 must be exhausted before any action against FCIC for judicial review may be brought.
This action is not expected to have a significant impact on the quality of the human environment, health, and safety. Therefore, neither an Environmental Assessment nor an Environmental Impact Statement is needed.
FCIC proposes to amend the Common Crop Insurance Regulations (7 CFR part 457) by revising 7 CFR 457.101, “Small grains crop insurance” and 7 CFR 457.102, “Wheat crop insurance winter coverage endorsement” effective for the 2001 and succeeding crop years. The principal changes to the provisions for insuring small grains and providing winter coverage for wheat in certain counties are as follows:
1. Section 1—Revise the definition of “small grains” to allow insurance for Kamut and buckwheat in response to industry request. Scientific names for specific small grain varieties that are insurable have also been added. Inclusion of these scientific names will help differentiate between small grain varieties that are insurable and those that are not. Also revise the definition of “prevented planting” to disallow a prevented planting benefit when small grains are prevented from being planted during the fall late planting period in counties that also have a spring final planting date. If the insured can plant spring wheat when he is not able to plant winter wheat, the insured is not prevented from planting wheat.
2. Section 2—Specify that initially planted durum or club wheat may qualify as a separate optional unit if the Special Provisions for the county designate durum or club wheat as a wheat type. Current provisions do not allow separate optional units for durum or club wheat. This change affords wheat producers additional flexibility in determining insurance coverage.
3. Section 3—Specify that the insured may select only one price election for each crop unless the Special Provisions provide different price elections by crop type, in which case the insured may select one price election for each crop type designated in the Special Provisions. The price election the insured selects for each crop type must have the same relationship to the maximum price offered. This simplifies administration of the program. Also, for counties with both fall and spring sales closing dates for the insured crop, this change allows the producer to change the coverage level or price election until the spring sales closing date only if the producer does not have any fall planted acreage of the insured crop.
4. Section 4—Change the December 31 contract change date for spring crops to November 30 to maintain an adequate amount of time between this date and new cancellation dates to permit the insured to make informed insurance decisions. This change is consistent with other spring crop policies.
5. Section 5—Change all April 15 cancellation and termination dates to March 15 to correspond to the change in the sales closing dates to comply with the requirement of the Federal Crop Insurance Reform Act of 1994 that spring planted crop sales closing dates be made 30 days earlier.
Change the cancellation and termination dates for Matanuska-Susitna County, Alaska from October 31 and November 30, respectively, to March 15 for wheat. Winter wheat is not adapted to the area.
Change the cancellation and termination dates from the spring (April 15) to the fall in certain counties to allow coverage for winter wheat. The cancellation date will be September 30 and the termination date will be November 30 in the following counties: Aurora, Bon Homme, Davidson, Douglas, Hanson, Harding, Hutchinson, Jerauld, Perkins, and Sanborn Counties, South Dakota; Roosevelt and Valley Counties, Montana; and Buffalo, Trempealeau, Jackson, Wood, Portage, Waupaca, Outagamie, Brown, and Kewaunee Counties, Wisconsin, and all Wisconsin counties north thereof.
Change the cancellation and termination dates for barley from April 15 to October 31 (for cancellation) and November 30 (for termination), in Humboldt and Pershing Counties, Nevada, and in Box Elder, Millard and Utah Counties, Utah. This change allows the establishment of winter barley coverage in these counties.
Add cancellation and termination date of March 15 for buckwheat in all states.
6. Section 6(b)(2)—Clarify the circumstances in which the premium will be reduced for insured acreage that is intentionally destroyed prior to harvest.
7. Section 6(d)—Provide that a malting barley endorsement is available where the actuarial table provides premium rates for such coverage.
8. Section 7(a)(1)—Revise so that insurance period provisions applicable to oats, rye and flax are also applicable to buckwheat. Buckwheat will be insurable under these crop provisions, so the insurance period provisions in this section will be amended accordingly.
9. Section 7(a)(2)(iii)—Specify that the insured must replant any fall planted barley or wheat that is damaged prior to the spring final planting date with a winter type of the crop if practical, or to spring type if it is not practical to replant a winter type. Previous provisions were not clear regarding the requirement to replant to spring wheat when it was impractical to replant a winter type. Also provide provisions for wheat only that will allow producers to put damaged winter wheat acreage to another use and receive a payment in accordance with new provisions in section 9(e). This benefit would be available only in counties with both fall and spring final planting dates. Under current provisions, if a producer elects not to replant wheat, no coverage is provided and no premium is charged (acreage is removed from the acreage report).
10. Section 7(a)(2)(v)—Clarify that in counties having only a spring final planting date, producers may request insurance for fall planted barley or wheat provided they do so by the spring sales closing date. Insurance will attach to such acreage on the date the insurer determines an adequate stand exists or on the spring final planting date if the insurer does not determine adequacy of the stand by the spring final planting date. Also clarify that after insurance begins, any such insured acreage damaged prior to the spring final planting date must be replanted if it is practical to do so.
11. Section 7(b)(4)—Change the calendar date for the end of the insurance period for all small grains from October 31 to July 31 in Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, North Carolina, South Carolina and Tennessee. Harvest of small grains in these states generally begins in June and ends about the middle of July.
12. Section 9—Revise to allow replanting payments for all small grains. Previous provisions allowed a replanting payment for wheat only. Also remove the requirement that replanting occur not later than 25 days after the spring final planting date. This provision is unnecessary because the provisions regarding the time for replanting are contained in the definitions of “practical to replant” and “late planting period.”
13. Section 9(a)(1)—Revise to make inapplicable the Basic Provisions' limit of the amount of a replant payment to the producer's actual cost. Administrative burden associated with obtaining receipts to prove cost will be eliminated with little effect on payment amounts. Insurance providers have reported that only in rare instances is the actual cost of replanting less than the maximum payment amount allowed by the crop provisions.
14. Section 9(a)(5)—Specify which fall final planting date is to be
15. Section 9(a)(6)—Revise to allow a replanting payment when the amount of seed used is less than the amount normally used for initial seeding. The seeding rate must be sufficient to achieve a total undamaged and new seeding plant population that will produce at least the yield used to determine the production guarantee. Allowing this payment under such circumstances will provide a greater incentive to improve poor crop stands, thereby improving production levels and reducing claims.
16. Section 9(c)—Change from three to four the number of bushels used to compute the amount of a replanting payment for wheat. Two bushels is used for flax and buckwheat, and five bushels is used for barley and oats. Average costs associated with replanting have increased substantially in recent years. These changes in the replanting payment computation better reflect actual replanting costs. Current provisions prevent the payment from being based on a production amount exceeding 20% of the production guarantee. This will protect against overpayments in areas where replanting costs may be lower.
17. Section 9(e)—Specify that replanting payments generally will be calculated based on the price election for the crop type that is replanted and insured. However, the replanting payment will be based on the price election of the type initially planted for any (1) damaged winter crop type that is replanted to a spring crop type, but retains insurance based on the winter crop type guarantee and price election; or (2) acreage replanted at a reduced seeding rate into a partially damaged stand of the insured crop.
18. Section 9(f)—Allow an insurance benefit for damaged winter wheat when a producer elects not to replant spring wheat and destroys any remaining winter wheat on the acreage. The proposed benefit is equal to 15 percent of the production guarantee for the acreage. Under current provisions, if a producer elects not to replant wheat, no coverage is provided and no premium is earned (acreage is removed from the acreage report). Additional levels of winter protection will remain available under the wheat crop insurance winter coverage endorsement.
19. Section 11(b)—Revise calculations of indemnities when there are separate crop types and more than one price election within a unit. This change is necessary because separate price elections have been established for some wheat types.
20. Section 11(c)(1)(iv)—Revise for consistency with provisions used for most other crops and to specify that in the event of a disagreement about the quantity of appraised production, the insurance provider has the option to consent to put the acreage to another use. Currently the insurance provider's consent is mandatory if the insured agrees to leave intact and care for representative samples.
21. Section 11(d)—Provide that any adjustment for excess moisture will be made before any adjustment for quality deficiencies to be consistent with other crop policies which permit both moisture and quality adjustments. Provide that buckwheat may be adjusted for excess moisture and quality deficiencies.
22. Section 11(d)(1)(iv)—Add buckwheat to the crops that are adjusted for moisture content above 16 percent.
23. Sections 11(d)(2)(i)(A) through (E)—Add musty, sour, or commercially objectionable foreign odors as factors that may qualify small grains for quality adjustment. These conditions reduce the value of production and can occur due to insured causes. Add “blighted” as a grade that qualifies barley for quality adjustment. This grade identifies production that has been damaged by certain levels of fungus or mold, both of which reduce the value of production and can occur due to insured causes. Add “thin” as a grade that qualifies oats for quality adjustment. This grade identifies production with a certain percentage of small kernels. These small kernels reduce the value of production and can occur due to insured causes such as drought. Add test weight as a factor that may qualify flaxseed for quality adjustment. Low test weight reduces the value of production and can occur due to insured causes. Add “light smutty” and “light garlicky” as grades that qualify rye for quality adjustment. These grades identify production with certain levels of smut balls or spores, or garlic bulblets, both of which reduce the value of production and can occur due to insured causes. Also clarify for wheat, barley, oats and rye, heat damaged kernels will not be considered to be damaged.
24. Section 11(d)(2)(ii)—Specify the factors that may qualify buckwheat for quality adjustment.
25. Section 11(d)(2)(iii)—Specify the factors that may qualify Kamut for quality adjustment.
26. Section 11(d)(3)—Remove the requirement that the value of damaged production be less than the local market price of U.S. No. 2 production. The quality factors will be specified for certain quality deficiency levels, so the requirement is no longer necessary.
27. Section 11(d)(4)—Requires use of discount factors for quality adjustment if provided in the Special Provisions. The use of such factors assures consistent adjustment for insureds with quality related losses. Quality adjustment factors contained in the Special Provisions are currently being used; however, the crop provisions do not specifically refer to them.
28. Section 12—Revise to allow a late planting period for all small grains, except for wheat which is covered under the wheat crop insurance winter coverage endorsement. Current provisions do not provide coverage for late planted winter wheat unless the acreage is prevented from being planted.
1. Section (b)—Clarify that the endorsement is available only if the actuarial table provides a premium rate for it.
2. Section (c)(5)—Clarify that all eligible winter wheat acreage must be insured under the endorsement. Allowing a choice of the acres to be insured could result in adverse selection as producers could choose to insure only acreage more prone to winter damage. Current provisions do not specify this requirement.
3. Option A—Increase the coverage amount from 30 to 50 percent of the production guarantee. Comments regarding the previous 30 percent coverage level have indicated that it is inadequate and very few Option A policies have been sold. Premium rates will be increased to reflect the additional payment.
4. Option A, section (a)—Clarify that if the insured elects to destroy the crop and plant the acreage to spring wheat, it will be insured under the provisions covering spring planted wheat. Current provisions give insureds the option of insuring such acreage. This change is intended to maintain consistency in insurance requirements for spring wheat planted to replace damaged winter wheat and reduce reporting requirements associated with a decision to insure.
5. Option B—Change the amount of coverage provided from 100 to 70 percent of the production guarantee. This change is made based on the potential production and income from various spring crops, including spring wheat, and the potential income from coverage provided by Option B.
6. Option B, section (c)—Clarify that if the insured elects to destroy the crop and plant the acreage to spring wheat, it will be insured under the provisions covering spring planted wheat. Current provisions give insureds the option of insuring such acreage. This change is intended to maintain consistency in insurance requirements for spring wheat planted to replace damaged winter wheat and reduce reporting requirements associated with a decision to insure.
Barley, Crop insurance, Flax, Oats, Rye, Wheat.
Accordingly, as set forth in the preamble, the Federal Crop Insurance Corporation proposes to amend 7 CFR part 457 to read as follows:
1. The authority citation for 7 CFR part 457 continues to read as follows:
7 U.S.C. 1506(l) and 1506(p).
2. Amend the crop insurance endorsement in § 457.101 as follows:
a. Amend section 1 of the crop provisions by adding a definition for “Kamut” and revising the definitions of “prevented planting” and “small grains;”
b. Revise section 2;
c. Revise section 3;
d. Revise section 4;
e. Revise section 5;
f. Revise section 6(b)(2) and add section 6(d);
g. Revise sections 7(a)(1) introductory text, 7(a)(2)(iii), 7(a)(2)(v) and 7(b)(4);
h. Revise section 9;
i. Revise sections 11(b), 11(c)(1)(iv) and 11(d); and
j. Revise section 12, all to read as follows:
In addition to the requirements of section 34(b) of the Basic Provisions, for wheat only, in addition to, or instead of, establishing optional units by section, section equivalent or FSA farm serial number and by irrigated and non-irrigated practices, optional units may be established if each optional unit contains only initially planted winter wheat, only initially planted spring wheat, only initially planted club wheat or only initially planted durum wheat. Separate optional units for initially planted winter wheat and initially planted spring wheat may be established only in counties having both winter and spring type final planting dates as designated in the Special Provisions. A separate optional unit for club wheat may be established only in counties for which the Special Provisions designate club wheat as a wheat type. A separate optional unit for durum wheat may be established only in counties for which the Special Provisions designate durum wheat as a wheat type.
(a) In addition to the requirements of section 3 of the Basic Provisions, you may select only one price election for each crop in the county insured under this policy unless the Special Provisions provide different price elections by type, in which case you may select one price election for each crop type designated in the Special Provisions. The price elections you choose for each type must have the same percentage relationship to the maximum price offered by us for each type. For example, if you choose 100 percent of the maximum price election for one type, you must also choose 100 percent of the maximum price election for all other types.
(b) In addition to the requirements of section three of the Basic Provisions, in counties with both fall and spring sales closing dates for the insured crop, you may change your coverage level or price election until the spring sales closing date only if you do not have any fall planted acreage of the insured crop.
In accordance with section 4 of the Basic Provisions, the contract change date is November 30 preceding the cancellation date for counties with a March 15 cancellation date and June 30 preceding the cancellation date for all other counties.
The cancellation and termination dates are:
(b) * * *
(2) May report all planted acreage as insurable when you report your acreage for the crop year. Premium will be due on all the acreage except as set out herein. If the Special Provisions allow a reduced premium amount for acreage intentionally destroyed prior to harvest, you may qualify for such reduction only if you notify us in writing on or before the date designated in the Special Provisions of the intended destruction, and do not claim an indemnity on the acreage. No premium reduction will be allowed if the required notice is not given or if you claim an indemnity for the acreage. Upon receiving timely notice, insurance coverage on the acreage you do not intend to harvest will cease and we will revise your acreage report to indicate the applicable reduction in premium. If you do not destroy the crop as intended, you will be subject to the under-reporting provisions contained in section 6 of the Basic Provisions.
(d) In counties for which the actuarial table provides premium rates for malting barley coverage, an endorsement is available (7 CFR 457.118) that provides additional insurance protection for malting barley. This endorsement provides coverage options for producers who grow malting barley under contract and those who do not have a contract. Coverage under the endorsement is effective only if you qualify under the terms of the option selected and you execute the endorsement by the sales closing date.
(a) * * *
(1) For oats, rye, flax and buckwheat, the following limitations apply:
(2) * * *
(iii) Whenever the Special Provisions designate both fall and spring final planting dates, any winter barley or wheat that is damaged before the spring final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted to a winter type of the insured crop unless we agree that replanting is not practical. If it is not practical to replant to winter barley, but is practical to plant spring barley, you must replant spring barley to keep your barley insurance in force. If it is not practical to replant to winter wheat but is practical to plant spring wheat, you must replant spring wheat to keep your wheat insurance in force. Any winter barley or wheat acreage that is replanted to a spring type of the same crop will be insured as the winter type and will maintain the guarantee, premium and price election applicable to the winter type. You may also elect to destroy any remaining wheat on the acreage and, if eligible, receive a payment in accordance with the provisions in section 9(e). If you
(v) Whenever the Special Provisions designate only a spring final planting date, any acreage of fall planted barley or wheat is not insured unless you request such coverage on or before the spring sales closing date, and we agree in writing that the acreage has an adequate stand in the spring to produce the yield used to determine your production guarantee. Insurance will attach to such acreage on the date we determine an adequate stand exists or on the spring final planting date if we do not determine adequacy of the stand by the spring final planting date. Any acreage of such fall planted barley or wheat that is damaged after it is accepted for insurance but before the spring final planting date, to the extent that growers in the area would normally not further care for the crop, must be replanted to a spring type of the insured crop unless we agree it is not practical to replant. If fall planted acreage is not to be insured it must be recorded on the acreage report as uninsured fall planted acreage.
(b) * * *
(4) The following applicable date of the calendar year in which the crop is normally harvested:
(i) September 25 following planting in Alaska;
(ii) July 31 in Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, New Jersey, North Carolina, South Carolina and Tennessee; or
(iii) October 31 in all other states; or
(a) A replanting payment for small grains, is allowed as follows:
(1) In lieu of provisions in section 13 of the Basic Provisions that limit the amount of a replant payment to the actual cost of replanting, the amount of any replanting payment will be determined in accordance with these crop provisions.
(2) You must comply with all requirements regarding replanting payments contained in section 13 of the Basic Provisions (except as allowed in section 9(a)(1)) and in any winter coverage endorsement for which you are eligible and which you have elected;
(3) The insured crop must be damaged by an insurable cause of loss to the extent that the remaining stand will not produce at least 90 percent of the production guarantee for the acreage;
(4) The acreage must have been initially planted to a spring type of the insured crop in those counties with only a spring final planting date;
(5) The damage must occur after the fall final planting date in those counties where both a fall and spring final planting date are designated. (If the Special Provisions provide more than one fall final planting date, the fall final planting date applicable to policies with the Wheat Winter Coverage Endorsement will be used for this purpose, regardless of whether or not the endorsement is actually in effect.); and
(6) The replanted crop must be seeded at a rate sufficient to achieve a total (undamaged and new seeding) plant population that will produce at least the yield used to determine your production guarantee.
(b) No replanting payment will be made for acreage initially planted to a winter type of the insured crop (includes rye) in any county for which the Special Provisions contain only a fall final planting date (includes final planting dates in December, January and February).
(c) The maximum amount of the replanting payment per acre will be the lesser of 20.0 percent of the production guarantee or the number of bushels for the applicable crop specified below, multiplied by your price election and your share:
(1) 2 bushels for flax or buckwheat;
(2) 4 bushels for wheat; or
(3) 5 bushels for barley or oats.
(d) When a crop is replanted using a practice that is uninsurable for an original planting, the liability on the unit will be reduced by the amount of the replanting payment. The premium amount will not be reduced.
(e) Replanting payments will be calculated using the price election for the crop type that is replanted and insured. For example, if damaged spring wheat is replanted to Durum wheat, the price election applicable to Durum wheat will be used to calculate any replanting payment that may be due. A revised acreage report will be required to reflect the replanted type. Notwithstanding the previous two sentences, the following will have a replanting payment based on the guarantee and price election for the crop type initially planted:
(1) Any damaged winter crop type that is replanted to a spring crop type, but that retains insurance based on the winter crop type guarantee and price election; and
(2) Any acreage replanted at a reduced seeding rate into a partially damaged stand of the insured crop.
(f) When any acreage of winter wheat is eligible for a replanting payment in accordance with these crop provisions and the Basic Provisions, but you elect not to replant wheat, you may destroy any remaining wheat on the acreage and utilize it for any purpose other than the production of wheat. By doing so, you agree to accept an amount of production to count against the unit production guarantee equal to 85 percent of the production guarantee for the damaged acreage, or an appraisal determined in accordance with the provisions in section 11 if such an appraisal results in a greater amount of production. This amount will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in section 11.
(b) In the event of loss or damage covered by this policy, we will settle your claim by:
(1) Multiplying the insured acreage by its respective production guarantee;
(2) Multiplying each result in section 11(b)(1) by the respective price election;
(3) Totaling the results of section 11(b)(2);
(4) Multiplying the total production to be counted of each type, if applicable, (see sections 11(c), (d), and (e)) by the respective price election;
(5) Totaling the results of section 11(b)(4);
(6) Subtracting the result of section 11(b)(5) from the result in section 11(b)(3); and
(7) Multiplying the result of section 11(b)(6) by your share.
(c) * * *
(1) * * *
(iv) Potential production on insured acreage that you intend to put to another use or abandon, if you and we agree on the appraised amount of production. Upon such agreement, the insurance period for that acreage will end when you put the acreage to another use or abandon the crop. If agreement on the appraised amount of production is not reached:
(A) If you do not elect to continue to care for the crop, we may give you consent to put the acreage to another use if you agree to leave intact, and provide sufficient care for, representative samples of the crop in locations acceptable to us (The amount of production to count for such acreage will be based on the harvested production or appraisals from the samples at the time harvest should have occurred. If you do not leave the required samples intact, or you fail to provide sufficient care for the samples, our appraisal made prior to giving you consent to put the acreage to another use will be used to determine the amount of production to count); or
(B) If you elect to continue to care for the crop, the amount of production to count for the acreage will be the harvested production, or our reappraisal if additional damage occurs and the crop is not harvested; and
(d) Mature wheat, barley, oat, rye, and buckwheat production may be adjusted for excess moisture and quality deficiencies. Flax production may be adjusted for quality deficiencies only. If a moisture adjustment is applicable, it will be made prior to any adjustment for quality.
(1) Production will be reduced by .12 percent for each .1 percentage point of moisture in excess of;
(i) 13.5 percent for wheat;
(ii) 14.5 percent for barley;
(iii) 14.0 percent for oats; and
(iv) 16.0 for rye and buckwheat.
We may obtain samples of the production to determine the moisture content.
(2) Production will be eligible for quality adjustment if:
(i) Deficiencies in quality, in accordance with the Official United States Standards for Grain, result in:
(A) Wheat, except Kamut, not meeting the grade requirements for U.S. No. 4 (grades U.S. No. 5 or worse) because of test weight, total damaged kernels (heat-damaged kernels will not be considered to be damaged), shrunken or broken kernels, defects (foreign material and heat damage will not be considered to be defects), a musty, sour, or commercially objectional foreign odor (except smut odor), or grading garlicky, light smutty, smutty or ergoty;
(B) Barley not meeting the grade requirements for U.S. No. 4 (grades U.S. No.
(C) Oats not meeting the grade requirements for U.S. No. 4 (grade U.S. sample grade) because of test weight or percentage of sound oats (heat-damaged kernels will be considered to be sound oats), a musty, sour, or commercially objectional foreign odor (except smut or garlic odor), or grading smutty, thin, garlicky, or ergoty;
(D) Rye not meeting the grade requirements for U.S. No. 3 (grades U.S. No. 4 or worse) because of test weight, percent damaged kernels (heat-damaged kernels will not be considered to be damaged) or thin rye, a musty, sour, or commercially objectional foreign odor (except smut or garlic odor), or grading light smutty, smutty, light garlicky, garlicky, or ergoty;
(E) Flaxseed not meeting the grade requirements for U.S. No. 2 (grades U.S. sample grade) due to test weight, damaged kernels (heat-damaged kernels will not be considered to be damaged), or a musty, sour, or commercially objectional foreign odor (except smut or garlic odor);
(ii) Deficiencies in the quality of buckwheat, determined in accordance with applicable state grading standards, result in it having a test weight lower than 42 pounds per bushel, or a musty, sour or commercially objectional foreign odor (except smut or garlic odor), or grading garlicky, smutty or ergoty if such grades are provided for by the applicable state grading standards;
(iii) Quality factors for Kamut fall below the levels contained in the Official United States Standards for Grain that cause durum wheat to grade less than U.S. No. 4. For example, if durum wheat grades less than U.S. No. 4 when its test weight falls below 54.0 pounds per bushel, Kamut would be eligible for quality adjustment if its test weight falls below 54.0 pounds per bushel. The same quality factors considered for quality adjustment of durum wheat will be applicable and determination of deficiencies will be made in accordance with the Federal Grain Inspection Service directive that establishes procedures for quality factor analysis of Kamut seed; or
(iv) Substances or conditions are present, including mycotoxins, that are identified by the Food and Drug Administration or other public health organizations of the United States as being injurious to human or animal health.
(3) Quality will be a factor in determining your loss only if:
(i) The deficiencies, substances, or conditions resulted from a cause of loss against which insurance is provided under these crop provisions;
(ii) All determinations of these deficiencies, substances, or conditions are made using samples of the production obtained by us or by a disinterested third party approved by us; and
(iii) The samples are analyzed by a grain grader licensed under the authority of the United States Grain Standards Act or the United States Warehouse Act with regard to deficiencies in quality, or by a laboratory approved by us with regard to substances or conditions injurious to human or animal health. Test weight for quality adjustment purposes may be determined by our loss adjustor.
(4) Small grain production that is eligible for quality adjustment, as specified in sections 11(d)(2) and (3), will be reduced by the quality adjustment factor contained in the Special Provisions.
A late planting period is applicable to small grains, except, to any wheat acreage covered under the terms of the Wheat Crop Insurance Winter Coverage Endorsement. Wheat covered under the terms of the Wheat Crop Insurance Winter Coverage Endorsement must be planted on or prior to the applicable final planting date specified in the Special Provisions. In counties having a fall final planting date for acreage covered under the Wheat Winter Coverage Endorsement and a fall final planting date for acreage not covered under the endorsement, the fall late planting period will begin after the final planting date for acreage not covered under the endorsement.
3. Amend the crop insurance endorsement contained in § 457.102 as follows:
a. Revise section (b);
b. Add section (c)(5);
c. Amend Option A by revising the heading, the introductory paragraph and paragraph (a) introductory text; and
d. Amend Option B by revising the heading, the introductory paragraph and paragraph (c) introductory text, all to read as follows:
(b) This endorsement is available only in counties for which the Special Provisions designate both a fall final planting date and a spring final planting date, and for which the actuarial table provides a premium rate for this coverage.
(c) * * *
(5) All eligible winter wheat acreage must be insured under this endorsement.
Whenever any winter wheat is damaged during the insurance period and at least 20 acres or 20 percent of the acreage in the unit, whichever is less, does not have an adequate stand to produce at least 90 percent of the production guarantee for the acreage, you may, at your option, take one of the following actions:
(a) Destroy the remaining crop on such acreage. By doing so, you agree to accept an amount of production to count against the unit production guarantee equal to 50 percent of the production guarantee for the damaged acreage, or an appraisal determined in accordance with section 11(c)(1) of the Small Grains Crop Provisions if such an appraisal results in a greater amount of production. This amount will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in section 11 (Settlement of Claim) of the Small Grains Crop Provisions. You may use such acreage for any purpose, including planting and separately insuring any other crop. If you elect to plant spring wheat, it will be insured in accordance with the policy provisions that are applicable to acreage that is initially planted to spring wheat, and you must:
Whenever any winter wheat is damaged during the insurance period and at least 20 acres or 20 percent of the acreage in the unit, whichever is less, does not have an adequate stand to produce at least 90 percent of the production guarantee for the acreage, you may, at your option, take one of the following actions:
(c) Destroy the remaining crop on such acreage. By doing so, you agree to accept an amount of production to count against the unit production guarantee equal to 30 percent of the production guarantee for the damaged acreage, or an appraisal determined in accordance with section 11(c)(1) of the Small Grains Crop Provisions if such an appraisal results in a greater amount of production. This amount will be considered production to count in determining any final indemnity on the unit and will be used to settle your claim as described in section 11 (Settlement of Claim) of the Small Grains Crop Provisions. You may use such acreage for any purpose, including planting and separately insuring any other crop. If you elect to plant spring wheat, it will be insured in accordance with the policy provisions that are applicable to acreage that is initially planted to spring wheat, and you must:
Farm Credit Administration (FCA).
Advance notice of proposed rulemaking (ANPRM).
The FCA is considering whether to revise its regulations governing how Farm Credit System (System) banks lend to other financing institutions (OFIs). OFIs include commercial banks, savings institutions, credit unions, trust companies, agricultural credit corporations, and other agricultural and aquatic lenders. This ANPRM asks you to comment on the appropriate risk weighting of System bank loans to OFIs, the public availability of the identities of OFIs, cross-district funding of OFIs, and ways to improve System banks' funding of OFIs.
You may send us comments by June 19, 2000.
Send us your comments by electronic mail to “reg-com@fca.gov” or through the Pending Regulations section of our Web site at “www.fca.gov.” You may also send written comments to Patricia W. DiMuzio, Director, Regulation and Policy Division, Office of Policy and Analysis, Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090, or by facsimile transmission to (703) 734-5784. You may review copies of all comments we receive in the Office of Policy and Analysis, Farm Credit Administration.
The objective of this ANPRM is to seek comment on whether we should revise FCA's regulations to improve and better promote OFI access to System funding. Through this ANPRM, we seek comment on issues related to:
• Revising System banks' capitalization requirements for loans to OFIs;
• Permitting disclosure of OFI corporate identities;
• Removing geographical impediments to OFIs' obtaining System bank funding; and
• Identifying other impediments to System bank funding of OFIs.
This ANPRM is another step in supporting the FCA Board's Philosophy Statement of July 14, 1998, in which we explained our goal to give farmers and ranchers greater access to credit.
The Farm Credit Act of 1971, as amended (1971 Act),
• National and State banks;
• Trust companies;
• Agricultural credit corporations;
• Incorporated livestock loan companies;
• Savings institutions;
• Credit unions;
• Any association of agricultural producers making loans to farmers and ranchers; and
• Any corporation making loans to producers or harvesters of aquatic products.
Section 1.7(b) of the 1971 Act
The OFI discount and lending authorities of System banks help to fulfill the banks' mission to finance agriculture, aquaculture, and other named rural needs. Congress first granted OFI lending authorities to System banks in 1923 and 1930, in the predecessor legislation to the 1971 Act.
Legislative history reveals that Congress originally granted OFIs discount privileges at System banks because operating credit for farmers and ranchers was scarce. Since then, Congress has continued to respond to the changing needs of agricultural producers and other rural residents for affordable short-and intermediate-term credit. Over the decades, Congress has updated the authorities of System banks to fund and aid both System and non-System lenders. As our Philosophy Statement on competition provides and as directed by provisions of the 1971 Act, we continue to explore ways of making competitive credit available through more avenues to farmers, ranchers, and other eligible borrowers.
In the early 1980s, both the number of OFIs and the volume of business they do with System banks peaked and subsequently declined and have since remained significantly low. In 1997, to expand OFIs' access to System bank funding and discounting, we amended our regulations to remove many OFI eligibility limits not required by the 1971 Act.
Among other things, our 1998 Philosophy Statement on competition communicates our desire for the System to more fully serve the credit needs of agricultural producers and other rural borrowers, as Congress intended, including short-and intermediate-term credit. The System banks' relationship with OFIs is important for meeting these needs. To support the bank and OFI relationship, we continue to identify ways to improve OFIs' access to System funding. After reviewing our regulatory requirements, we have decided to consider the following changes:
(1) Revising the level of capital System banks must hold against their loans to OFIs based on certain risk characteristics;
(2) Permitting disclosure of the names of entities that have an OFI relationship with a System bank; and
(3) Removing impediments to setting up an OFI relationship outside a System bank's territorial boundaries.
We believe that revising these requirements may spur development of more OFI relationships and, thus, provide added avenues of credit available to farmers and ranchers.
We recognize that reducing the risk weighting on OFI loans could reduce capital available to support the risk in the bank's assets. However, if the risk is properly assessed, such adjustment to the risk weighting should not pose a safety and soundness concern. Furthermore, we believe an approach to capital requirements of OFIs that is more consistent with those of System associations is appropriate.
In this ANPRM, we seek comments from all interested parties to aid us in developing proposed regulations that increase opportunities for OFI lending to the extent allowed by the Act and within appropriate safety and soundness boundaries. We also ask for your help in identifying other impediments to System bank funding of OFIs.
Subparts H and K of part 615 of FCA regulations impose risk-based capital requirements on System banks. We adopted risk-weighting categories for System bank assets as part of the 1988 regulatory capital revisions required by the Agricultural Credit Act of 1987. The categories are similar to the risk-weighting categories from the 1988 International Basle Accord, whose principles the Federal banking regulators have also adopted.
Under our regulations, a System bank's loan to an OFI receives a risk weighting of 100 percent.
The FCA's decision to risk-weight a loan to an affiliated System institution at 20 percent was based on several general characteristics that serve to lower the risk of that category of loans. They are:
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•
•
•
•
System bank funding relationships with OFIs have some, but not all, of the risk-reducing features of System bank loans to System associations. They are:
•
•
•
•
•
We have several choices for revising the risk weighting of loans to OFIs. If we decide that OFI loans, as a class, have a lower risk than other assets in the 100-percent risk-weighting category, we can lower the risk weighting uniformly on all OFI loans.
Another alternative is to place OFI loans in different risk-weighting categories to reflect differences in the type of OFI. Loans to OFIs that are regularly examined and have capital requirements similar to our capital rules, such as commercial banks, might qualify for a lower risk weighting. Other OFIs that are unregulated and do not have capital requirements similar to our capital rules might have a higher risk weighting.
Yet another choice would be to lower the risk weighting on loans to OFIs that meet certain risk mitigation criteria. For example, a proposed June 1999 revision to the Basle Accord seeks to reassess the risk weightings currently assigned to assets.
The FCA's regulations on releasing information
The reasons for protecting the identity of retail borrowers, who are mostly individual consumers such as farmers and ranchers or rural homeowners, may not be present for OFIs.
In this light, we are considering a requirement to disclose the names of entities that have OFI relationships with System banks. We are interested in receiving your comments and recommendations on the conditions under which to release the information. We note that we are not considering the release of any information about OFIs except the name of the business and other identifying information such as the type of agricultural credit the OFI offers.
In July 1998, we amended the regulations to authorize a System bank to lend to an OFI whose headquarters are outside of the bank's territory or a majority of whose loan volume is outside of the bank's territory.
(1) FCBs and ACBs to provide funding to any OFI applicant that maintains its headquarters in the funding bank's chartered territory, or has more than 50 percent of its outstanding eligible loan volume in the funding bank's chartered territory; and
(2) OFIs to apply to any other FCB or ACB if the original FCB or ACB denies or otherwise fails to approve an OFI's funding request within 60 days of receipt of a “completed application” as defined by 12 CFR 202.2(f).
In addition, an FCB or ACB may grant its consent for an OFI to seek financing from another System bank. The regulation also provides that no OFI will be required to terminate its existing funding or discount relationship with an FCB or ACB if, at a subsequent time, an OFI relocates its headquarters to the chartered territory of another System bank or the loan volume in the relevant territory falls below 50 percent.
The 1998 amendments gave new flexibility to OFIs for choosing a System bank for establishing a funding relationship. But we retained some restrictions because, at the time, System associations were restricted in their ability to seek financing from other System banks. However, the Board's subsequent Philosophy Statement supports broader funding access for borrowers and lending institutions. Therefore, given our continued interest to explore different alternatives that provide greater access to System funding, we are seeking comment on possible ways to provide greater flexibility to OFIs setting up funding relationships with System banks in different districts.
In this ANPRM, we seek your comments on the following:
1. If we lower the risk weighting of capital to be held by System banks for all types of loans to OFIs, what risk-weighting category would be appropriate? Please provide your analysis of the level of risk weighting that you recommend.
2. How should we address the variety of possible OFI types and OFI relationships:
a. Would it be more appropriate to lower the risk weighting on OFI loans on a case-by-case basis, based on underwriting criteria for various risk categories? Why or why not? What underwriting criteria should we require System banks to establish for the various levels of risk weighting?
b. Should we consider the use of risk mitigation techniques (such as a pledge of added security), or differentiate between direct retail credit risk exposure and wholesale credit risk exposure? Why or why not? Please recommend how we should address risk mitigation techniques in our regulations.
c. What is the appropriate level of risk weighting on loans to OFIs that meet risk mitigation criteria? Please provide your recommendations and analysis.
3. Should we allow or require System banks to release the names of OFIs on request? Are there any drawbacks for the System bank, the OFI, or the OFI's customers, if the identities of OFIs are released? Do you believe any limits on the release of such information are necessary? Please provide your recommendations and associated explanation.
4. Should new regulations continue the territorial limits for OFIs' funding access to System banks as addressed in existing § 614.4550? If not, what if any factors should limit an OFI's choice of System bank? Please provide your recommendations and explanation.
5. Are there other regulatory changes we could make or alternatives not addressed above that we should consider to improve a System bank's ability to serve an OFI and its agricultural customers? Please provide your recommendations and explanation for such alternatives.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to certain Airbus Model A300, A300-600, and A310 series airplanes, that currently requires inspections to detect cracks in the lower spar axis of the nacelle pylon between ribs 9 and 10, and repair, if necessary. The existing AD also provides for optional modification of the pylon, which terminates the inspections for Model A300 and A310
Comments must be received by May 22, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-240-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9 a.m. and 3 p.m., Monday through Friday, except Federal holidays.
The service information referenced in this AD may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Norman B. Martenson, Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2110; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 99-NM-240-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 99-NM-240-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On April 28, 1995, the FAA issued AD 95-10-03, amendment 39-9220 (60 FR 25604, May 12, 1995), applicable to certain Airbus Industrie Model A300, A300-600, and A310 series airplanes, to require inspections to detect cracks in the lower spar axis of the nacelle pylon between ribs 9 and 10, and repair, if necessary. The existing AD also provides for optional modification of the pylon, which terminates the inspections for Model A300 and A310 series airplanes and increases the threshold and repetitive interval of the inspections for Model A300-600 series airplanes. That action was prompted by reports that fatigue cracks have been found between ribs 9 and 10 on the lower spar of the pylon, initiating at the center stiffener beyond the flat area. The requirements of that AD are intended to prevent such fatigue cracking, which could result in reduced structural integrity of the lower spar of the pylon.
Since issuance of AD 95-10-03, the Direction Ge
Airbus has issued Service Bulletin A310-54-2016, Revision 02, dated June 11, 1999 (for Model A310 series airplanes). The actions described in Revision 02 of this service bulletin are identical to those described in the original version and Revision 01 (which were cited as appropriate service information for accomplishment of the inspections). Revision 02 was issued to reduce the initial inspection threshold and, for airplanes modified in accordance with Service Bulletin A310-54-2022, Revision 1, dated March 16, 1999, to specify that the inspection be repetitively performed.
The DGAC classified Service Bulletin A310-54-2016 as mandatory and issued French airworthiness directive 1999-237-285(B), dated June 2, 1999, in order to assure the continued airworthiness of these airplanes in France. French airworthiness directive 1992-049-130(B) R4 was issued to remove Model A310 series airplanes from its applicability and to advise of the issuance of airworthiness directive 1999-237-285(B).
These airplane models are manufactured in France and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 95-10-03 to continue to require inspections to detect cracks in the lower spar axis of the nacelle pylon between ribs 9 and 10, and repair, if necessary. The proposed AD would continue to provide for optional modification of the pylon; for Model A300 series airplanes, accomplishment of the modification would terminate the inspections; for Model A300-600 and A310 series airplanes, such
Operators should note that, although the service bulletins specify that the manufacturer may be contacted for disposition of certain repair conditions, this proposal would require the repair of those conditions to be accomplished in accordance with a method approved by either the FAA, or the DGAC (or its delegated agent). In light of the type of repair that would be required to address the identified unsafe condition, and in consonance with existing bilateral airworthiness agreements, the FAA has determined that, for this proposed AD, a repair approved by either the FAA or the DGAC would be acceptable for compliance with this proposed AD.
The FAA estimates that 140 airplanes of U.S. registry will be affected by this AD.
It will take approximately 4 work hours per airplane to accomplish the inspection that was previously required by AD 95-10-03, and retained in this AD, at an average labor rate of $60 per work hour. Based on these figures, the cost impact of the inspection on U.S. operators is estimated to be $240 per airplane, per inspection cycle.
The total cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.
Should an operator elect to accomplish the proposed optional modification, it would take approximately 104 work hours (52 work hours per pylon) to accomplish it, at an average labor rate of $60 per work hour. The cost of required parts would be approximately $1,200 per airplane. Based on these figures, the total cost impact of the optional modification is estimated to be $7,440 per airplane.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-9220 (60 FR 25604, May 12, 1995), and by adding the following new airworthiness directive (AD), to read as follows:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (e) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent fatigue cracking, which could result in reduced structural integrity of the lower spar of the pylon, accomplish the following:
(a) For Model A300 B4-2C, B2K-3C, B2-203, B4-103, and B4-203 series airplanes: Prior to the accumulation of 9,000 total landings, or within 500 landings after June 12, 1995 (the effective date of AD 95-10-03, amendment 39-9220), whichever occurs later, perform an internal eddy current inspection to detect cracks in the lower spar axis of the pylon between ribs 9 and 10, in accordance with Airbus Industrie Service Bulletin A300-54-071, dated November 12, 1991; or Revision 1, dated October 15, 1993.
(1) If no crack is found, repeat the inspection thereafter at intervals not to exceed 2,500 landings.
(2) If any crack is found that is less than or equal to 30 mm: Perform subsequent inspections and repair in accordance with the methods and times specified in the service bulletin.
(3) If any crack is found that is greater than 30 mm, but less than 100 mm: Prior to the accumulation of 250 landings after crack discovery, repair in accordance with a method approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate; or the Direction Ge
(4) If any crack is found that is greater than or equal to 100 mm: Prior to further flight, repair in accordance with a method approved by the Manager, International Branch, ANM-116; or the DGAC (or its delegated agent).
(5) Accomplishment of the modification specified in Airbus Industrie Service Bulletin A300-54-0079, dated October 15, 1993, constitutes terminating action for the inspections required by paragraph (a) of this AD.
(b) For Model A300-600 B4-620, C4-620, B4-622R, and B4-622 series airplanes: Except as provided by paragraph (b)(5) of this AD, prior to the accumulation of 4,000 total landings, or within 500 landings after June 12, 1995 (the effective date of AD 95-10-03), whichever occurs later, perform an internal eddy current inspection to detect cracks in the lower spar axis of the pylon between ribs 9 and 10, in accordance with Airbus Industrie Service Bulletin A300-54-6011, dated November 12, 1991, as amended by Service Bulletin Change Notice O.A., dated July 10, 1992; or Revision 1, dated October 15, 1993.
(1) If no crack is found, repeat the inspection thereafter at intervals not to exceed 2,500 landings.
(2) If any crack is found that is less than or equal to 30 mm: Perform subsequent inspections and repair in accordance with
(3) If any crack is found that is greater than 30 mm, but less than 100 mm: Prior to the accumulation of 250 landings after crack discovery, repair in accordance with a method approved by the Manager, International Branch, ANM-116; or the Direction Ge
(4) If any crack is found that is greater than or equal to 100 mm: Prior to further flight, repair in accordance with a method approved by the Manager, International Branch, ANM-116; or the DGAC (or its delegated agent).
(5) Accomplishment of the modification specified in Airbus Industrie Service Bulletin A300-54-6019, dated October 15, 1993, increases the threshold and repetitive interval of the inspections required by paragraph (b) of this AD to the threshold and interval specified in paragraph 2.D. of the Accomplishment Instructions of Airbus Industrie Service Bulletin A300-54-6011, Revision 1, dated October 15, 1993.
(c) For Model A310-221, -222, -322, -324, and -325 series airplanes: Perform an internal eddy current inspection to detect cracks in the lower spar axis of the pylon between ribs 9 and 10, in accordance with Airbus Industrie Service Bulletin A310-54-2016, dated November 12, 1991; or Revision 1, dated October 15, 1993; or Revision 2, dated June 11, 1999; at the time specified in paragraph (d) of this AD.
(1) If no crack is found, repeat the inspection thereafter at intervals not to exceed 2,500 landings.
(2) If any crack is found that is less than or equal to 30 mm: Perform subsequent inspections and repair in accordance with the methods and times specified in the service bulletin.
(3) If any crack is found that is greater than 30 mm, but less than 100 mm: Prior to the accumulation of 250 landings after crack discovery, repair in accordance with a method approved by the Manager, International Branch, ANM-116; or the DGAC (or its delegated agent).
(4) If any crack is found that is greater than or equal to 100 mm: Prior to further flight, repair in accordance with a method approved by the Manager, International Branch, ANM-116; or the DGAC (or its delegated agent).
(5) Accomplishment of the modification specified in Airbus Industrie Service Bulletin A310-54-2022, dated October 15, 1993; or Revision 1, dated March 16, 1999; increases the threshold and repetitive interval of the inspections required by paragraph (c) of this AD to the threshold and interval specified in paragraph 2.D. of the Accomplishment Instructions of Airbus Industrie Service Bulletin A310-54-2016, Revision 02, dated June 11, 1999.
(d) Perform the initial inspection required by paragraph (c) of this AD at the earlier of the times specified by paragraphs (d)(1) and (d)(2) of this AD.
(1) Prior to the accumulation of 25,000 total landings, or within 500 landings after June 12, 1995, whichever occurs later.
(2) At the applicable time specified by paragraph (d)(2)(i), (d)(2)(ii), or (d)(2)(iii) of this AD.
(i) For airplanes that have accumulated fewer than 10,000 landings as of the effective date of this AD: Perform the inspection prior to the accumulation of 3,800 total landings, or within 1,500 landings after the effective date of this AD, whichever occurs later.
(ii) For airplanes that have accumulated 10,000 total landings or more, but fewer than 20,000 total landings, as of the effective date of this AD: Perform the inspection within 1,000 landings after the effective date of this AD.
(iii) For airplanes that have accumulated 20,000 total landings or more as of the effective date of this AD: Perform the inspection within 500 landings after the effective date of this AD.
(e) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(f) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in French airworthiness directive 1999-237-285(B), dated June 2, 1999.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to certain Airbus Model A300-600 series airplanes, that currently requires repetitive ultrasonic inspections to detect cracks in the bolt holes inboard and outboard of rib 9 on the bottom booms of the front and rear wing spars, and repair, if necessary. This action would revise the compliance thresholds for the inspection and would require that the inspections be repeated at reduced intervals. This proposal is prompted by issuance of mandatory continuing airworthiness information by a foreign civil airworthiness authority. The actions specified by the proposed AD are intended to prevent fatigue cracks in the bolt holes of the wing spars, which could result in reduced structural integrity of a wing spar.
Comments must be received by May 22, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 98-NM-164-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056. Comments may be inspected at this location between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
The service information referenced in the proposed rule may be obtained from Airbus Industrie, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France. This information may be examined at the FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington.
Norman B. Martenson, Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate, 1601 Lind Avenue, SW., Renton, Washington 98055-4056; telephone (425) 227-2110; fax (425) 227-1149.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 98-NM-164-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 98-NM-164-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.
On March 29, 1995, the FAA issued AD 95-07-05, amendment 39-9187 (60 FR 17990, April 10, 1995), applicable to certain Airbus Model A300-600 series airplanes, to require repetitive ultrasonic inspections to detect fatigue cracks in the bolt holes inboard and outboard of rib 9 on the bottom booms of the front and rear wing spars, and repair, if necessary. That action was prompted by the discovery of fatigue cracks that emanated from the bolt holes inboard and outboard of rib 9 in the bottom booms of the front and rear wing spars. The requirements of that AD are intended to prevent cracks in the bolt holes of the wing spars, which could result in reduced structural integrity of a wing spar.
Since the issuance of that AD, the Direction G
That service bulletin specified an interval not to exceed 9,000 flight cycles for repetitive inspections, which would have resulted in accomplishment of the next inspection on this airplane at 32,545 total flight cycles. Accomplishment of the next inspection at the scheduled compliance time would have allowed the cracking on this airplane to remain undetected for 2,626 flight cycles. Therefore, the DGAC has concluded that the existing repetitive interval for these inspections does not detect such cracking in a timely manner, and advises that the interval should be reduced.
Subsequent to the finding of this new cracking, Airbus issued Service Bulletin A300-57-6037, Revision 1, dated August 31, 1995. The inspection and repair procedures described in Revision 1 of the service bulletin are essentially identical to those described in the original issue of the service bulletin. However, Revision 1 of the service bulletin reduces the repetitive inspection intervals from 9,000 flight cycles, as specified in the original issue of the service bulletin, to 4,800 flight cycles.
The DGAC classified Revision 1 of this service bulletin as mandatory and issued French airworthiness directive 94-208-169(B)R2, dated October 8, 1997, in order to assure the continued airworthiness of these airplanes in France.
This airplane model is manufactured in France and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the DGAC has kept the FAA informed of the situation described above. The FAA has examined the findings of the DGAC, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.
Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would supersede AD 95-07-05 to continue to require repetitive ultrasonic inspections to detect cracks in the bolt holes inboard and outboard of rib 9 on the bottom booms of the front and rear wing spars, and repair, if necessary. This proposed AD would require that the repetitive inspections be accomplished at a revised threshold and at reduced intervals. The actions would be required to be accomplished in accordance with the service bulletin described previously, except as discussed below.
Operators should note that, unlike particular provisions in the service bulletin regarding adjustment of the compliance times using an “adjustment-for-range” formula, this proposed AD would not permit formulaic adjustments of the inspection compliance times. The FAA has determined that such adjustments may present difficulties in determining if the applicable inspections and modifications have been accomplished within the appropriate time frame. Further, while such adjustable compliance times are utilized as part of the Maintenance Review Board program, they do not fit practically into the AD tracking process for operators or for Principal Maintenance Inspectors attempting to ascertain compliance with AD's. Therefore, the FAA has determined that fixed compliance times should be specified for accomplishment of the actions required by this AD.
Additionally, after discussions with the DGAC and the manufacturer, the FAA has determined that flight-hour maximums should be included as part of the compliance threshold and repetitive intervals for the inspections required by this proposed AD. Inclusion of a compliance threshold in terms of total flight hours as well as total flight cycles, and requiring inspection at the earlier of those times, will ensure that airplanes with longer-than-average flight times are inspected at a threshold and intervals necessary to maintain safety. Accordingly, the FAA has specified that the initial inspection must be accomplished at the earliest time an airplane reaches certain accumulated total flight cycles or total flight hours, and that repetitive inspections are to be accomplished at intervals not to exceed certain flight cycles or flight hours, whichever occurs first.
The FAA has determined that such revision of the inspection threshold and
There are approximately 75 airplanes of U.S. registry that would be affected by this proposed AD.
The inspection that is currently required by AD 95-07-05, and retained in this AD, takes approximately 1 work hour per airplane to accomplish (excluding 10 work hours for access and close-up), at an average labor rate of $60 per work hour. Based on this figure, the cost impact of the currently required inspection on U.S. operators is estimated to be $4,500, or $60 per airplane, per inspection cycle.
The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the current or proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing amendment 39-9187 (60 FR 17990, April 10, 1995), and by adding a new airworthiness directive (AD), to read as follows:
This AD applies to each airplane identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For airplanes that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (c) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent fatigue cracks in the bolt holes of the wing spars, which could result in reduced structural integrity of a wing spar, accomplish the following:
(a) Perform an ultrasonic inspection to detect fatigue cracking of the bolt holes inboard and outboard of rib 9 on the bottom booms of the front and rear wing spars, in accordance with Airbus Service Bulletin A300-57-6037, dated August 1, 1994, or Revision 1, dated August 31, 1995, at the applicable time specified in paragraph (a)(1) or (a)(2) of this AD. Repeat the inspection thereafter at intervals not to exceed 4,800 flight cycles or 11,000 flight hours, whichever occurs first.
(1) For airplanes on which Airbus Modification 8842 (reference Airbus Service Bulletin A300-57-6039) has not been installed: Inspect at the earlier of the times specified by paragraphs (a)(1)(i) and (a)(1)(ii) of this AD.
(i) Prior to the accumulation of 17,000 total flight cycles, or within 2,000 flight cycles after May 10, 1995 (the effective date of AD 95-07-05, amendment 39-9187), whichever occurs later.
(ii) Prior to the accumulation of 39,000 total flight hours.
(2) For airplanes on which Airbus Modification 8842 has been installed: Inspect at the earlier of the times specified by paragraphs (a)(2)(i) and (a)(2)(ii) of this AD.
(i) Within 17,000 flight cycles after accomplishment of Airbus Modification 8842, or within 2,000 flight cycles after May 10, 1995, whichever occurs later.
(ii) Within 39,000 flight hours after accomplishment of Airbus Modification 8842.
(b) If any crack is found, prior to further flight, repair in accordance with Airbus Service Bulletin A300-57-6037, dated August 1, 1994, or Revision 1, dated August 31, 1995. Thereafter, perform the repetitive inspections required by paragraph (a) of this AD.
(c) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, International Branch, ANM-116, FAA, Transport Airplane Directorate. Operators shall submit their requests through an appropriate FAA Principal Maintenance Inspector, who may add comments and then send it to the Manager, International Branch, ANM-116.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the International Branch, ANM-116.
(d) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane to a location where the requirements of this AD can be accomplished.
The subject of this AD is addressed in French airworthiness directive 94-208-169(B)R2, dated October 8, 1997.
Federal Aviation Administration, DOT.
Notice of proposed rulemaking (NPRM).
This document proposes the supersedure of an existing airworthiness directive (AD), applicable to Sikorsky Aircraft-manufactured Model CH-54A helicopters, that currently requires initial and recurring inspections and rework or replacement, if necessary, of the second stage lower planetary plate (plate). This action would require the same actions as the existing AD but would add two additional type certificate (TC) holders to the applicability of the AD and change one TC holder who has transferred ownership of the affected helicopters since the issuance of the existing AD. This proposal is prompted by the discovery that the applicability section of the existing AD is incomplete. The actions specified by the proposed AD are intended to prevent failure of the plate due to fatigue cracking which could result in failure of the main gearbox, failure of the drive system, and subsequent loss of control of the helicopter.
Comments must be received on or before June 19, 2000.
Submit comments in triplicate to the Federal Aviation Administration (FAA), Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 99-SW-81-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137. You may also send comments electronically to the Rules Docket at the following address: 9-asw-adcomments@faa.gov. Comments may be inspected at the Office of the Regional Counsel between 9:00 a.m. and 3:00 p.m., Monday through Friday, except Federal holidays.
Uday Garadi, Aviation Safety Engineer, Rotorcraft Standards Staff, Rotorcraft Directorate, FAA, Fort Worth, Texas 76193-0110, telephone (817) 222-5123, fax (817) 222-5961.
Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this notice may be changed in light of the comments received.
Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.
Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 99-SW-81-AD.” The postcard will be date stamped and returned to the commenter.
Any person may obtain a copy of this NPRM by submitting a request to the FAA, Office of the Regional Counsel, Southwest Region, Attention: Rules Docket No. 99-SW-81-AD, 2601 Meacham Blvd., Room 663, Fort Worth, Texas 76137.
On March 25, 1999, the FAA issued AD 99-07-16, Amendment 39-11102 (64 FR 15669, April 1, 1999), to require initial and recurring inspections and rework or replacement, if necessary, of the plate. Cracks on the plate, part number 6435-20229-102, initiate at and radiate from the lightening holes in the plate web due to fatigue. That action was prompted by cracked plates that were found during overhaul and inspections. The requirements of that AD are intended to prevent failure of the plate due to fatigue cracking, which could result in failure of the main gearbox, failure of the drive system, and subsequent loss of control of the helicopter.
Since the issuance of that AD, the FAA has discovered that two TC holders were inadvertently omitted from the applicability section and one TC holder has transferred the TC for an affected model helicopter.
Since an unsafe condition has been identified that is likely to exist or develop on other Sikorsky Aircraft-manufactured Model CH-54A helicopters of the same type design, the proposed AD would supersede AD 99-07-16 to require initial and recurring inspections and rework or replacement, if necessary, of the plate.
The FAA estimates that 12 helicopters of U.S. registry would be affected by this proposed AD, that it would take approximately 8 work hours per helicopter to accomplish the proposed inspections and 56 hours to remove and replace the plate, and that the average labor rate is $60 per work hour. Required parts would cost approximately $8,000 per helicopter. Based on these figures, the total cost impact of the proposed AD on U.S. operators is estimated to be $142,080 to replace the plates in the entire fleet.
The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.
For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption
Air transportation, Aircraft, Aviation safety, Safety.
Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:
1. The authority citation for part 39 continues to read as follows:
49 U.S.C. 106(g), 40113, 44701.
2. Section 39.13 is amended by removing Amendment 39-11102 (64 FR 15669, April 1, 1999), and by adding a new airworthiness directive (AD), to read as follows:
This AD applies to each helicopter identified in the preceding applicability provision, regardless of whether it has been otherwise modified, altered, or repaired in the area subject to the requirements of this AD. For helicopters that have been modified, altered, or repaired so that the performance of the requirements of this AD is affected, the owner/operator must request approval for an alternative method of compliance in accordance with paragraph (d) of this AD. The request should include an assessment of the effect of the modification, alteration, or repair on the unsafe condition addressed by this AD; and, if the unsafe condition has not been eliminated, the request should include specific proposed actions to address it.
To prevent failure of the second stage lower planetary plate (plate), P/N 6435-20229-102, due to fatigue cracking, which could lead to failure of the main gearbox, failure of the drive system, and subsequent loss of control of the helicopter, accomplish the following:
(a) On or before accumulating 1,300 hours time-in-service (TIS), conduct a fluorescent magnetic particle inspection of the plate, P/N 6435-20229-102, in the circumferential and longitudinal directions using the wet continuous method. Pay particular attention to the area around the 9 lightening holes.
(1) If any crack is discovered, replace the plate with an airworthy plate prior to further flight.
(2) If no crack is discovered, rework the plate as follows:
(i) Locate the center of each 1.750 inch-diameter lightening hole and machine holes 0.015 to 0.020 oversize on a side (0.030 to 0.040 diameter oversize). Machined surface roughness must not exceed 63 microinches AA rating (see Figure 1).
(ii) Radius each hole 0.030 to 0.050 inches on each edge as shown in Figure 1.
(iii) Mask the top and bottom surfaces of the plate to expose 3.20 inch minimum width circumferential band as shown in Figure 1.
(iv) Vapor blast or bead exposed surfaces to remove protective finish. Use 220 aluminum oxide grit at a pressure of 80 to 90 pounds per square inch.
(v) Shot peen exposed surfaces and inside and edges of lightening holes to 0.008-0.012A intensity. Use cast steel shot, size 170; 200 percent coverage is required. Use the tracer dye inspection method to ensure the required coverage. Also, visually inspect the shot peened surfaces for correct shot peen coverage. Inspect the intensity of the shot by performing an Almen strip height measurement.
(vi) Clean reworked surfaces using acetone. Touch up the reworked areas using Presto Black or an equivalent touchup solution. Ensure that the touchup solution is at a temperature between 70 °F to 120 °F during use. Keep the reworked surfaces wet with touchup solution for 3 minutes to obtain a uniform dark color. Rinse and dry the reworked areas.
(vii) Polish the reworked surfaces with a grade 00 or finer steel wool and polish with a soft cloth. Coat the reworked surfaces with preservative oil.
(viii) Identify the reworked plate by adding “TS-107” after the part number using a low-stress depth-controlled impression-stamp with a full fillet depth of not more than 0.003 inch (see Figure 1).
(b) For any plate, P/N 6435-20229-102, that has been reworked and identified with “TS-107,” on or before the accumulation of 1,500 hours TIS and thereafter at intervals not to exceed 70 hours TIS, accomplish the following:
(1) Inspect the plate for a crack in the area around all nine lightening holes using a Borescope or equivalent inspection method (see Figure 2).
(2) If a crack is found, replace the plate with an airworthy plate prior to further flight.
(c) On or before the accumulation of 2,600 hours TIS, remove from service plates, P/N 6435-20229-102, reidentified as P/N 6435-20229-102-TS-107 after rework. This AD revises the airworthiness limitation section of the maintenance manual by establishing a retirement life of 2,600 hours TIS for the main gearbox assembly second stage lower planetary plate, P/N 6435-20229-102, reidentified as P/N 6435-20229-102-TS-107 after rework.
(d) An alternative method of compliance or adjustment of the compliance time that provides an acceptable level of safety may be used if approved by the Manager, Rotorcraft Certification Office, Rotorcraft Directorate, FAA. Operators shall submit their requests through an FAA Principal Maintenance Inspector, who may concur or comment and then send it to the Manager, Rotorcraft Certification Office.
Information concerning the existence of approved alternative methods of compliance with this AD, if any, may be obtained from the Rotorcraft Certification Office.
(e) Special flight permits may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the helicopter to a location where the requirements of this AD can be accomplished.
Railroad Retirement Board.
Proposed rule.
The Railroad Retirement Board proposes to adopt regulations pertaining to the finality of decisions under the Railroad Unemployment Insurance Act (Act). The present rules dealing with finality of decisions under that statute are incomplete and are contained in a Board Order which is not readily available to the public. Therefore, the Board has determined that the present rules should be revised and published as a regulation.
Submit comments on or before June 19, 2000.
Address any comments concerning this proposed rule to the Secretary to the Board, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611.
Marguerite P. Dadabo, Senior Attorney, Railroad Retirement Board, (312) 751-4945, TTD (312) 751-4701.
The Board's rules and procedures regarding the finality of decisions with respect to benefits under the Railroad Unemployment Insurance Act are presently contained in a Board Order, which is not readily available to the public. Also the Board Order does not contain any time limits on reopening. The proposed regulation addresses the finality of benefit decisions. This proposed rule is similar to part 261 of the Board's regulations on reopening of decisions under the Railroad Retirement Act (20 CFR 261).
Proposed § 349.1 describes who may open a final decision issued by the agency. Proposed § 349.2 describes when a final decision may be reopened. A final decision may be reopened within 12 months of the date of notice of such decision. A final decision may also be reopened within 4 years of the date of notice if new and material evidence is furnished or if the decision was not reasonably consistent with the evidence of record at the time the decision was made. A decision may be reopened at any time if the decision was obtained by fraud or similar fault, or if the decision was that the employee was not a qualified employee and is later found to be one because of a correction in his or her record of compensation, or if the decision was wholly or partially unfavorable to a claimant, but only to correct clerical error or an error that appears on the face of the evidence that was considered when the decision was made. See proposed § 349.2(c).
Proposed § 349.3 provides that a change of legal interpretation or administrative ruling upon which a decision was based is not a basis for reopening.
Proposed § 349.4 provides that a decision may be reopened after the 1 year and 4 year time limits set forth in § 349.2 if the Board had begun an investigation within those time limits. However, if the Board does not diligently pursue the investigation, the agency will not reopen the decision if the decision was favorable to the claimant.
Proposed §§ 349.5-349.7 are procedural and provide that if a decision is reopened, the claimant will be given notice and will have a right to reconsideration and/or a hearing. Any hearing shall be conducted in accordance with part 320 of the Board's regulations (20 CFR 320).
Finally, proposed § 349.8 provides that the three-member Board has the discretion to reopen or not to reopen any decision under these regulations.
The Board, with the concurrence of the Office of Management and Budget, has determined that this is not a significant regulatory action under Executive Order 12866; therefore, no regulatory impact analysis is required. There are no information collections associated with this rule.
Railroad employees, Railroad unemployment insurance.
For the reasons set out in the preamble, the Railroad Retirement Board proposes to add a new part 349 to 20 CFR Chapter II as follows:
45 U.S.C. 355 and 362(l).
(a) This part sets forth the Board's rules governing finality of decisions with respect to benefits under the Railroad Unemployment Insurance Act. After the expiration of the time limits for review as set forth in part 320 of this chapter, decisions may be reopened and revised only under the conditions described in this subpart, by the bureau, office or entity that made the earlier decision or by a bureau, office, or other entity at a higher level which has the claim properly before it. Whether a final decision is reopened or not reopened is solely within the discretion of the Board.
(b) A
(c)
(d)
A final decision may be reopened:
(a) Within 12 months of the date of the notice of such decision, for any reason;
(b) Within four years of the date of the notice of such decision:
(1) If there is new and material evidence; or
(2) If the decision was not reasonably consistent with the evidence of record at the time of adjudication.
(c) At any time if:
(1) The decision was obtained by fraud or similar fault;
(2) The decision was that the claimant was not a qualified employee, and he or she is now qualified because compensation was credited to the employee's record of compensation in accordance with part 211 of this chapter:
(i) To correct errors apparent on the face of the compensation record;
(ii) To enter items transferred by the Social Security Administration which were credited under the Social Security Act when they should have been credited to the employee's railroad retirement compensation record; or
(iii) To correct errors made in the allocation of earnings to individuals or periods which would have made him or her a qualified employee at the time of the decision if the earnings had been credited to his or her earnings record at that time;
(3) The decision is wholly or partially unfavorable to a claimant, but only to correct a clerical error or an error that appears on the face of the evidence that was considered when the decision was made.
A change of legal interpretation or administrative ruling upon which a decision is based does not render a decision erroneous and does not provide a basis for reopening.
(a) A decision may be revised after the applicable time period in §§ 349.2(a) or (b) expires if the Board begins an investigation into whether to revise the decision before the applicable time period expires and the agency diligently pursues the investigation to the conclusion. The investigation may be based on a request by a claimant or on action by the Board.
(b)
(c) If the investigation is not diligently pursued to its conclusion, the decision will be revised if a revision is applicable and if it is favorable to the claimant. It will not be revised if it would be unfavorable to the claimant.
(a) When a decision is revised, notice of the revision will be mailed to the parties to the decision at their last known address. The notice will state the basis for the revised decision and the effect of the revision. The notice will also inform the parties of the right to further review.
(b) If a hearings officer or the three-member Board proposes to revise a decision, and the revision would be based only on evidence included in the record on which the prior decision was based, all parties will be notified in writing of the proposed action. If a revised decision is issued by a hearings officer, any party may request that it be reviewed by the three-member Board, or the three-member Board may review the decision on its own initiative.
A revised decision is binding unless:
(a) The revised decision is being reconsidered or appealed in accord with part 320 of this chapter;
(b) The three-member Board reviews the revised decision; or
(c) The revised decision is further revised consistent with this part.
A party to a revised decision may request, as appropriate, further review of the decision in accordance with the rules set forth in part 320 of this chapter. Further review or a hearing will be held according to the rules set forth in part 320 of this chapter.
In any case in which the three-member Board may deem proper, the Board may direct that any decision, which is otherwise subject to reopening under this part, shall not be reopened or direct that any decision, which is otherwise not subject to reopening under this part, shall be reopened.
By Authority of the Board.
For the Board,
Office of the Secretary, Treasury.
Proposed rule.
In accordance with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a, the Treasury Department, Internal Revenue Service, gives notice of a proposed amendment to exempt the system of records entitled “Criminal Investigation Audit Trail Records System—Treasury/IRS 46.051” from certain provisions of the Privacy Act. The exemption is intended to comply with legal prohibitions against the disclosure of certain kinds of information and to protect certain information on individuals maintained in this system of records.
Comments must be received no later than May 22, 2000.
Comments should be sent to the Office of Governmental Liaison and Disclosure, Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC 20224. Comments will be made available for inspection and copying in the Freedom of Information Reading Room upon request.
Fu-An Chao, Chief, Systems Development and Support, Criminal Investigation, (202) 622-7803.
The Internal Revenue Service's Criminal Investigation Division seeks to establish and maintain the proposed new system of records as a more comprehensive means of performing its responsibilities.
Criminal Investigation carries out many law enforcement related functions. Among Criminal Investigation's principal responsibilities are investigating and referring for prosecution criminal cases, centering largely on violations of tax laws,
Many of these law enforcement related functions have been automated and are available on Criminal Investigation computer systems. To ensure the integrity of the system data, audit records are maintained to identify all events that occur while users access or attempt to access the computer system.
The returns and returns information contained within this system constitute investigatory material compiled for law enforcement purposes under Title 26 of the United States Code.
Pursuant to the Privacy Act of 1974, the Department of the Treasury is publishing separately the notice of a new system of records, to be maintained by the Internal Revenue Service.
Under 5 U.S.C. 552a(j)(2) and (k)(2), the head of an agency may promulgate rules to exempt any system of records within the agency from certain provisions of the Privacy Act of 1974 if the system contains investigatory material compiled for law enforcement purposes. The Criminal Investigation Audit Trail Records System—Treasury/IRS 46.051 contains information relating to investigatory material compiled for law enforcement purposes pursuant to 26 U.S.C. 7213, 7213A and 18 U.S.C. 1030(a)(2)(B). Such investigatory material includes: identities of individuals under investigation, identities of potential witnesses, and identities of investigating agents.
The exemptions under 5 U.S.C. 552a(j)(2) and (k)(2), relating to investigatory material are hereby claimed for this system. The Department of the Treasury is hereby giving notice of a proposed rule to exempt this system of records described above from certain provisions of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(2) and authority of 31 CFR 1.23(c). The reasons for exempting this system of records from certain provisions of 5 U.S.C. 552a are set forth below:
(1) 5 U.S.C. 552a(c)(3). This provision of the Privacy Act provides for the release of the disclosure accounting required by 5 U.S.C. 552a(c)(1) and (2) to the individual named in the record at the individual's request. The reasons for exempting the system of records from the foregoing provision are as follows:
(i) The release of disclosure accounting would put the subject of an investigation on notice of the existence of an investigation and that such person is the subject of that investigation;
(ii) Such release of the disclosure accounting would provide the subject of an investigation with an accurate accounting of the date, nature, name and address of the person or agency to whom the disclosure was made. The release of such information to the subject of an investigation would provide the subject with significant information concerning the nature of the investigation and could result in the altering or destruction of documentary evidence, the improper influencing of witnesses, and other activities that could impede or compromise the investigation.
(iii) Release to the individual of the disclosure accounting would alert the individual as to which agencies were investigating this person and the scope of the investigation, and could aid the individual in impeding or compromising investigations by those agencies.
(2) 5 U.S.C. 552a(c)(4), (d)(1), (2), (3), and (4), (e)(4)(G) and (H), (f) and (g). These provisions of the Privacy Act relate to an individual's right to notification of the existence of records pertaining to such individual; requirements for identifying an individual who requests access to records; the agency procedures relating to access to records and the contents of the information contained in such records; and the civil remedies available to the individual in the event of adverse determinations by an agency concerning access to or amendment of information contained in record systems. The reasons for exempting the system of records from the foregoing provisions are as follows: To notify an individual at the individual's request of the existence of records in an investigative file pertaining to such individual or to grant access to an investigative file could interfere with investigative and enforcement proceedings; deprive co-defendants of a right to a fair trial or an impartial adjudication; constitute an unwarranted invasion of the personal privacy of others; disclose the identity of confidential sources and reveal confidential information supplied by such sources; and disclose investigative techniques and procedures.
(3) 5 U.S.C. 552a(e)(4)(I). This provision of the Privacy Act requires the publication of the categories of sources of records in each system of records. In cases where an exemption from this provision has been claimed, the reasons are as follows:
(i) Revealing categories of sources of information could disclose investigative techniques and procedures;
(ii) Revealing categories of sources of information could cause sources who supply information to investigators to refrain from giving such information because of fear of reprisal, or fear of breach of promises of anonymity and confidentiality.
(4) 5 U.S.C. 552a(e)(1). This provision of the Privacy Act requires each agency to maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or executive order. The reasons for exempting the system of records from the foregoing provision are as follows:
(i) The Internal Revenue Service will limit its inquiries to information which is necessary for the enforcement and administration of tax laws. However, an exemption from the foregoing provision is needed because, particularly in the early stages of an investigation, it is not possible to determine the relevance or necessity of specific information.
(ii) Relevance and necessity are questions of judgment and timing. What appear relevant and necessary when collected may subsequently be determined to be irrelevant or unnecessary. It is only after the information is evaluated that the relevance or necessity of such information can be established with certainty.
(iii) When information is received by the Internal Revenue Service relating to violations of law within the jurisdiction of other agencies, the Internal Revenue Service processes this information through Internal Revenue Service systems in order to forward the material to the appropriate agencies.
(5) 5 U.S.C. 552a(e)(2). This provision of the Privacy Act requires an agency to collect information to the greatest extent practicable directly from the subject individual when the information may result in an adverse determination about an individual's rights, benefits, and privileges under federal programs. The reasons for exempting the system of records from the foregoing provision are as follows:
(i) In certain instances the subject of a criminal investigation cannot be required to supply information to investigators. In those instances, information relating to a subject's criminal activities must be obtained from other sources;
(ii) In a criminal investigation it is necessary to obtain evidence from a variety of sources, other than the subject of the investigation, in order to accumulate and verify the evidence necessary for the successful prosecution of persons suspected of violating criminal laws.
(6) 5 U.S.C. 552a(e)(3). This provision of the Privacy Act requires that an agency must inform the subject of an investigation who is asked to supply information of (A) the authority under which the information is sought and whether disclosure of the information is mandatory or voluntary, (B) the purposes for which the information is intended to be used, (C) the routine uses which may be made of the information, and (D) the effects on the subject, if any, of not providing the requested information. The reasons for exempting the system of records from the foregoing provision are as follows:
(i) The disclosure to the subject of an investigation of the purposes for which the requested information is intended to be used would provide the subject with significant information concerning the nature of the investigation and could result in impeding or compromising the investigation.
(ii) Individuals may be contacted during preliminary information gathering, surveys, or compliance projects concerning the administration of the internal revenue laws before any individual is identified as the subject of an investigation. Informing the individual of the matters required by this provision could impede or compromise subsequent investigations.
(7) 5 U.S.C. 552a(e)(5). This provision of the Privacy Act requires an agency to maintain all records which are used in making any determination about an individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination. The reasons for exempting the system of records from the foregoing provision are as follows: Since the law defines “maintain” to include the collection of information, compliance with the foregoing provision would prohibit the initial collection of any data not shown to be accurate, relevant, timely, and complete at the moment of its collection. In gathering information during the course of a criminal investigation, it is not always feasible or possible to determine completeness, accuracy, timeliness, or relevancy prior to collection of the information. Facts are first gathered and then placed into a cohesive order which objectively proves or disproves criminal behavior on the part of a suspect. Seemingly irrelevant, untimely, or incomplete information when gathered may acquire new significance as an investigation progresses. The restrictions of the foregoing provision could impede investigators in the preparation of a complete investigative report.
(8) 5 U.S.C. 552a(e)(8). This provision of the Privacy Act requires an agency to make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record. The reasons for exempting the system of records from the foregoing provision are as follows: The notice requirement of the foregoing provision could prematurely reveal the existence of criminal investigations to individuals who are the subjects of such investigations.
The Department of the Treasury has determined that this proposed rule is not a “significant regulatory action” under Executive Order 12866.
Pursuant to the requirements of the Regulatory Flexibility Act, 5 U.S.C. 601-612, for the reasons set forth above, it is hereby certified that this rule will not have significant economic impact on a substantial number of small entities.
In accordance with the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Privacy.
Part 1 of Title 31 of the Code of Federal Regulations is amended as follows:
1. The authority citation for Part 1 continues to read as follows:
5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued under 5 U.S.C. 552a as amended. Subpart C also issued under 5 U.S.C. 552a.
2. Section 1.36 of Subpart C is amended by adding the following text in numerical order to the table in paragraphs (a)(1) and (b)(1) under the heading THE INTERNAL REVENUE SERVICE
(a) * * *
(1) * * *
(b) * * *
(1) * * *
Department of Commerce.
Notice of amendment of Privacy Act System of Records: Commerce System 14.
In accordance with the Privacy Act (5 U.S.C. 552a(e) (4) and (11), the Department of Commerce is issuing notice of our intent to amend the system of records entitled Commerce Department System 14, “Litigation, Claims, and Administrative Proceeding Records,” to add to this system records compiled in conjunction with a newly established complaint procedure for sexual orientation discrimination claims. We invite public comment on the proposed change in this publication.
Comments may be mailed to Kathryn E. Hawker, Chief, Compliance Division, Office of Civil Rights, U.S. Department of Commerce, Room 7840, 14th & Constitution Avenue, NW, Washington, DC 20230, 202-482-4993.
The amendment adds to this system files containing records of claims filed under a new complaint procedure for sexual orientation discrimination claims that will be established by Department Administrative Order. This complaint process is being established to implement Executive Order 11478, as amended by Executive Order 12106, and as further amended by Executive Order 13087 (collectively, the Executive Order). This Executive Order prohibits employment discrimination based on sexual orientation in Federal employment and provides that “this policy of equal opportunity applies to and must be an integral part of every aspect of personnel policy and practices in the employment, development, advancement, and treatment of civilian employees of the Federal government, to the extent permitted by law.” The new complaint process provides a mechanism for ensuring that the requirements of the Executive Order are being met throughout the Department.
The Department's sexual orientation process is modeled on the Equal Employment Opportunity (EEO) complaint process. Employees and applicants who believe they have been subject to discrimination based on sexual orientation or related retaliation must first contact an EEO Counselor, who attempts to resolve the issues informally. If the issues are not resolved through counseling, the complainant may file a formal complaint of discrimination with the Department's Office of Civil Rights, which investigates the issues. The Director, Office of Civil Rights issues a final decision on the merits. The Department's Alternative Dispute Resolution Process may be used at any time throughout the complaint process. Final agency decisions may be appealed to the Department's Chief Financial Officer/Assistant Secretary for Administration.
This notice is not subject to the notice and comment requirements of the Administrative Procedure Act. 5 U.S.C. 553(a)(2).
This notice is exempt from review under Executive Order 12866.
Accordingly, the Litigation, Claims, and Administrative Proceeding Records system notice originally published at 46 FR 63517, December 31, 1981, is amended by the addition of the following information and updates:
Litigation, Claims, and Administrative Proceeding Records.
Insert before current paragraph i:
“For matters involving the Department's Sexual Orientation Discrimination Complaint Process: Files containing informal complaint records are maintained by the Bureau EEO Officer. Files containing records of formal complaints are maintained in the Departmental Office of Civil Rights, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Room 6010, Washington, DC 20230.
Change current paragraph i. to paragraph j.
Add after “E.O. 10450;': “E.O. 11478”, as amended.
The names, social security numbers, home address and salary may be disclosed to the appropriate federal, state, or local agency responsible for investigating, prosecuting, enforcing, or implementing a statute, rule, regulation, or order, where the disclosing agency becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation; to a congressional office from the record of an individual in response to an inquiry from that congressional office made at the request of that individual; to an authorized appeal grievance examiner, formal complaints examiner, administrative judge, equal employment opportunity investigator, arbitrator or other duly authorized official engaged in investigation or settlement of a grievance, complaint or appeal filed by an employee; in response to a request for discovery or for appearance of a witness, information that is relevant to the subject matter involved in a pending judicial or administrative proceeding.
Add after “Paper records in file folders”: “and electronic records in computer files.
Add after “Files alphabetically by name”: “or numerically by complaint number.
After first sentence, add: “Access to electronic files is limited to those whose official duties require access.”
Add before last paragraph:
“For records at location i.: Chief, Compliance Division, Office of Civil Rights, U.S. Department of Commerce, Washington, DC 20230.”
Change last paragraph as follows: Strike “e, f and i.:” and replace with “e, f, and j.:”
Strike “For records at location i.:” and replace with “For records at location j.:”
Prior to the above sentence, add:
For records at location i.: Information may be obtained from: Chief, Compliance Division, Office of Civil Rights, U.S. Department of Commerce, Washington, DC 20230.”
* No changes are being made.
In the matters of: Thane-Coat, Inc., 12725 Royal Drive, Stafford, Texas 77477, Jerry Vernon Ford, President, Thane-Coat, Inc., 12725 Royal Drive, Stafford, Texas 77477 and with an address at 7707 Augustine Drive, Houston, Texas 77036, and Preston John Engebretson, Vice-President, Thane-Coat, Inc., 12725 Royal Drive, Stafford, Texas 77477 and with an address at 8903 Bonhomme Road, Houston, Texas 77074, Respondents.
On October 13, 1999, I issued a Decision and Order on Renewal of Temporary Denial Order (hereinafter “Order” or “TDO”), renewing for 180 days, in a “non-standard” format, a May 5, 1997 Order naming,
On March 20, 2000, pursuant to Section 766.24 of the Export Administration Regulations (currently codified at 15 CFR Parts 730-774 (1999)) (hereinafter the “Regulations”), issued pursuant to the Export Administration Act of 1979, as amended (50 U.S.C.A. app. §§ 2401-2420 (1991 & Supp. 1999)) (hereinafter the “Act”),
In its request, BXA stated that, as a result of an ongoing investigation, it had reason to believe that, during the period from approximately June 1994 through approximately July 1996, Thane-Coat, Inc., through Ford and Engebretson, and using its affiliated companies, TIC Ltd. and Export Materials, Inc., made approximately 100 shipments of U.S.-origin pipe coating materials, machines, and parts to the Dong Ah Consortium in Benghazi, Libya. These items were for use in coating the internal surface of prestressed concrete cylinder pipe for the Government of Libya's Great Man-Made River Project.
BXA has stated that it believes that the matters under investigation and the information obtained to date in that investigation support renewal of the TDO issued against the Respondents. In that regard, in April 1998, BXA and the Respondents reached an agreement, whereby BXA sought a renewal of the TDO in a “non-standard” format, denying all of the Respondents' U.S. export privileges to the United Kingdom, the Bahamas, Libya, Cuba, Iraq, North Korea, Iran, and any other country or countries that may be made subject in the future to a general trade embargo by proper legal authority. In return, the Respondents agreed that, among other conditions, at least 14 days in advance of any export that any of the Respondents intends to make of any item from the United States to any destination world-wide, the Respondents will provide to BXA's Dallas Field Office (i) notice of the intended export, (ii) copies of all documents reasonably related to the subject transaction, including, but not limited to, the commercial invoice and bill of lading, and (iii) the opportunity, during the 14-day notice period, to inspect physically the item at issue to ensure that the intended shipment is in compliance with the Export Administration Act, the Export Administration Regulations, or any order issued thereunder. BXA has sought renewal of the TDO in a “non-standard” format; respondents have not opposed renewal of the TDO in the “non-standard” format.
Based on BXA's showing, I find that it is appropriate to renew the order temporarily denying the export privileges to Thane-Coat, Inc., Jerry Vernon Ford, and Preston John Engebretson in a “non-standard” format, incorporating the terms agreed to by and between the parties in April 1998. I find that such renewal is necessary in the public interest to prevent an imminent violation of the Regulations and to give notice to companies in the United States and abroad to cease dealing with these persons in any commodity, software, or technology subject to the Regulations and exported or to be exported to the United Kingdom, the Bahamas, Libya, Cuba, Iraq, North Korea, Iran, and any other country or countries that may be
A. Applying for, obtaining, or using any license Exception, or export control document:
B. Carrying or negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item that is subject to the Regulations and that is exported or to be exported from the United States to any of the Covered Countries, or in any other activity subject to the Regulations; or
C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States to any of the Covered Countries that is subject to the Regulations, or in any activity subject to the Regulations.
A. Export or reexport to or on behalf of any of the denied persons any item subject to the Regulations to any of the Covered Countries.
B. Take any action that facilitates the acquisition, or attempted acquisition by any of the denied persons of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States to any of the Covered Countries, including financing or other support activities related to a transaction whereby any of the denied persons acquires or attempts to acquire such ownership, possession or control;
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from any of the denied persons of any item subject to the Regulations that has been exported from the United States to any of the Covered Countries;
D. Obtain from any of the denied persons in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States to any of the Covered Countries; or
E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States to any of the Covered Countries, and which is owned, possessed or controlled by any of the denied persons, or service any item, of whatever origin, that is owned, possessed or controlled by any of the denied persons if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States to any of the Covered Countries. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
A copy of this Order shall be served on each Respondent and shall be published in the
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs adjusting limits.
April 20, 2000.
Naomi Freeman, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port,
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being adjusted for swing, special shift and carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on October 4, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool and man-made fiber textiles and textile products and silk blend and other vegetable fiber apparel, produced or manufactured in the Philippines and exported during the twelve-month period which began on January 1, 2000 and extends through December 31, 2000.
Effective on April 20, 2000, you are directed to adjust the limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Committee for the Implementation of Textile Agreements (CITA).
Issuing a directive to the Commissioner of Customs adjusting limits.
April 20, 2000.
Ross Arnold, International Trade Specialist, Office of Textiles and Apparel, U.S. Department of Commerce, (202) 482-4212. For information on the quota status of these limits, refer to the Quota Status Reports posted on the bulletin boards of each Customs port, call (202) 927-5850, or refer to the U.S. Customs website at http://www.customs.gov. For information on embargoes and quota re-openings, call (202) 482-3715.
Section 204 of the Agricultural Act of 1956, as amended (7 U.S.C. 1854); Executive Order 11651 of March 3, 1972, as amended.
The current limits for certain categories are being reduced for carryforward used. The current limits are being increased in Categories 340 and 347/348/847 for the recrediting of unused carryforward.
A description of the textile and apparel categories in terms of HTS numbers is available in the CORRELATION: Textile and Apparel Categories with the Harmonized Tariff Schedule of the United States (see
Dear Commissioner: This directive amends, but does not cancel, the directive issued to you on December 1, 1999, by the Chairman, Committee for the Implementation of Textile Agreements. That directive concerns imports of certain cotton, wool, man-made fiber, silk blend and other vegetable fiber textiles and textile products, produced or manufactured in Thailand and exported during the period which began on January 1, 2000 and extends through December 31, 2000.
Effective on April 20, 2000, you are directed to adjust the limits for the following categories, as provided for under the Uruguay Round Agreement on Textiles and Clothing:
The Committee for the Implementation of Textile Agreements has determined that these actions fall within the foreign affairs exception to the rulemaking provisions of 5 U.S.C. 553(a)(1).
Sincerely,
Pursuant to the provisions of Part 404 of Title 37, Code of Federal Regulations, which implements Public Law 96-517, the Department of the Air Force announces its intention to grant SMJ Carbon Technology, a company doing business in Nashua, New Hampshire (NH) an exclusive license in any right, title and interest the Air Force has in U.S. Patent Application entitled “CARBON AND CERMAIC MATRIX COMPOSITES FABRICATED BY A RAPID AND LOW-COST PROCESS INCORPORATING IN-SITU POLYMERIZATION OF WETTING MONOMERS.” The inventors, Phillip G. Wapner, Wesley P. Hoffman and Steven Jones were all government employees at the time of the invention. The invention was filed in the U.S. Patent and Trade Office on June 8, 1998.
The license described above will be granted unless an objection thereto, together with a request for an opportunity to be heard, if desired, is received in writing by the addressee set forth below within 60 days from the date of publication of this Notice. Information concerning the application may be obtained, on request, from the same addressee.
All communications concerning this Notice should be sent to Mr. Randy Heald, Associate General Counsel (Acquisition), SAF/GCQ, 1500 Wilson Blvd., Suite 304, Arlington, VA 22209-2310. Mr. Heald can be reached at 703-588-5091 or by fax at 703-588-8037.
Energy Information Administration, DOE.
Agency information collection activities: Proposed collection, comment request.
The Energy Information Administration (EIA) is soliciting comments concerning proposed revisions and three-year extensions to the Oil and Gas Reserves Survey Forms EIA-23, EIA-23P and EIA-64A. Titles of these forms are “Annual Survey of Domestic Oil and Gas Reserves” (EIA-23), “Oil and Gas Well Operator List Update Report” (EIA-23P), and “Annual Report of the Origin of Natural Gas Liquids Production” (EIA-64A), respectively.
Written comments must be submitted on or before June 19, 2000. If you anticipate difficulty in submitting comments within that period, contact the person listed below as soon as possible.
Send comments to Rafi Zeinalpour, U.S. Department of Energy, Energy Information Administration, Reserves and Production Division, 1999 Bryan Street, Suite 1110, Dallas, Texas 75201-6801. Alternatively, Rafi Zeinalpour may be reached by phone at (214) 720-6191, at the e-mail address of rzeinalp@eia.doe.gov or by FAX at (214) 720-6155.
Requests for additional information or copies of the forms and instructions should be directed to Rafi Zeinalpour at the address listed above.
The Federal Energy Administration Act of 1974 (Pub. L. No. 93-275, 15 U.S.C. 761
The EIA, as part of its effort to comply with the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. Chapter 35), provides the general public and other Federal agencies with opportunities to comment on collections of energy information conducted by or in conjunction with the EIA. Any comments received help the EIA to prepare data requests that maximize the utility of the information collected and to assess the impact of collection requirements on the public. Also, the EIA will later seek approval by the Office of Management and Budget (OMB) of the collections under Section 3507(h) of the Paperwork Reduction Act of 1995.
Operators of crude oil and natural gas wells are the target respondents of Forms EIA-23 and EIA-23P. The amount of crude oil, associated-dissolved natural gas, non-associated natural gas and lease condensate production and reserves by individual field are requested of large and intermediate size producers on Form EIA-23. A sample of small operators are required to submit less detailed information on a different version of the form and the majority of small operators are not asked to report annually on Form EIA-23. The selected sample of small operators provide production and available reserves information for crude oil, natural gas and lease condensate at a State or geographic sub-division level on the Form EIA-23. Form EIA-23P is a postcard form used to collect information on possible oil and gas well operators that may be included in future EIA-23 surveys. Information obtained
Operators of natural gas plants are the target respondents of the Form EIA-64A. The amount of natural gas processed, natural gas liquids produced, resultant shrinkage of the natural gas and natural gas used in processing are requested of all natural gas plant operators.
In response to Public Law 95-91 Section 657, estimates of U.S. oil and gas reserves are to be reported annually. These estimates are essential to the development, implementation and evaluation of energy policy and legislation. Data are used directly in the EIA annual publication, U.S. Crude Oil, Natural Gas and Natural Gas Liquids Reserves, and are incorporated in a number of other publications and analyses. Secondary publications which use the data include EIA's Annual Energy Review, Annual Energy Outlook, Petroleum Supply Annual and Natural Gas Annual.
This notice is for a proposed three-year extension of Form EIA-23, “Annual Survey of Domestic Oil and Gas Reserves”, Form EIA-23P, “Oil and Gas Well Operator List Update Report”, and Form EIA-64A, “Annual Report of the Origin of Natural Gas Liquids Production”, until December 31, 2003. Form EIA-23P will be extended without modification. Currently available reliable State sources will be used to confirm and/or update operator information thereby reducing the number of Form EIA-23P mail-outs and thus the burden on respondents.
More efficient utilization of space on Form EIA-64A is proposed by reducing the number of available lines for sources of the natural gas and increasing the number of available lines for explanatory notes and comments. This change should allow for more complete information and a reduction in paper attachments.
Modifications to the Schedule A Form (field level detailed report) and the information collected on Form EIA-23 are proposed. First, a single page will now contain information on three individual fields instead of data on four fields as shown on the current form. This will increase the readability and the ease of manually completing this form.
Second, information on two additional reserves classifications will be requested from individual large and intermediate sized operators. These additions are the gross operated volumes of reserves sold and/or acquired by these companies during the survey year. This information should be readily available, since in the majority of cases, for companies selling properties this should be the same volume of reserves as those reported on the previous year's survey as year-end reserves. For companies acquiring properties, these gross reserves volumes would be the same as those determined during the evaluation process prior to the acquisition. The reserves volumes for sold and acquired properties will also provide a more complete understanding of the sources of growths and reductions in reserves and an independent evaluation of the gross annual volumes of reserves under new operators. These modifications to Form EIA-23 are also anticipated to reduce the reporting burden time for the large and intermediate operators.
The format for Form EIA-23, Schedule A, will be revised first to include these two new classifications and also to allow the reporting of production from wells without available values of reserves in the same location on the form as production from wells with available values of reserves. Reporting all production information in the same location should increase the accuracy of the data and the efficiency of completing the form. The form location for reporting proved non-producing reserves will be moved to the location previously used for reporting production associated with wells without available values of reserves. As a result of this move, the location of the total values of reserves will now be at the end of the rows on the Form EIA-23. These changes should increase data accuracy and reduce both confusion and the time required to complete the form.
On the Form EIA-23, Summary Report, which is completed by small operators, two changes are proposed. First, the form would not have the State and/or geographic sub-divisions preprinted. Instead, the operator would identify and enter on the form all areas in which they have operated properties. This will eliminate one page of the report and increase the accuracy and readability of the information. Additionally, the lines for data entry have been expanded to allow for easier manual input. The units for reporting crude oil, natural gas and lease condensate production and reserves would also be changed from thousands of barrels and millions of cubic feet units to barrels and thousands of cubic feet, which is more routinely used by small operators. This should increase accuracy and eliminate rounding errors for the small operators.
Many U.S. government agencies have an interest in the definitions of proved oil and gas reserves and the quality, reliability and usefulness of estimates of reserves. Among these are the Energy Information Administration (EIA), Department of Energy; Minerals Management Service (MMS), Department of Interior; Internal Revenue Service (IRS), Department of the Treasury; and the Securities and Exchange Commission (SEC). Each of these organizations has specific purposes for collecting, using or estimating proved reserves. The EIA has a congressional mandate to provide accurate annual estimates of U.S. proved crude oil, natural gas and natural gas liquids reserves and publishes an annual reserves report to meet this requirement. The MMS is second only to the IRS in generating Federal revenue. The MMS maintains estimates of proved reserves to carry out their responsibilities in leasing, collecting royalty payments and regulating the activities of oil and gas companies on Federal lands and water. For the IRS, proved reserves and occasionally probable reserves are an essential component of calculating taxes for companies owning or producing oil and gas. The SEC requires publicly traded petroleum companies to annually file a reserves statement as part of their 10-K filing. The basic purpose of the 10-K filing is to give the investing public a clear and reliable financial basis to assess the relative value, as a financial asset, of a company's reserves, especially in comparison to other similar oil and gas companies.
The Society of Petroleum Engineers (SPE) adopted new oil and gas reserves definitions in March 1997 for the three categories of proved, probable and possible reserves. The SPE is an international organization of petroleum engineers with 50,000 members worldwide. The World Petroleum Congresses (WPC) ratified the same definitions in October 1996 and is a co-sponsor of the definitions. These definitions were thoroughly discussed and reviewed for several years prior to adoption by the WPC. The EIA, through its observer's position on the committee, strongly supported the adoption of the new SPE/WPC definitions. Consequently, the EIA has recently adopted the SPE/WPC definitions. This action has been somewhat delayed, however, in order to allow time for all major U.S. government agencies having a significant interest in proved oil and gas reserves to adopt the new definitions concurrently. The MMS has
These new definitions contain at least two major changes from the previous SPE definitions adopted in 1987. First,
The EIA believes that allowing and accepting probabilistic estimates of reserves is both state-of-the-art and a means for improving the understanding of proved reserves The EIA expects that most filers will continue to utilize the deterministic methodology to determine reserves but will accept probabilistic estimates when appropriate. Reserves calculated using any type of evaluation methodology rely upon the skill, integrity and judgment of the evaluator and require an ample amount of reliable data.
The EIA also believes that using an average annual price for oil and gas rather than a so called “market price” on December 31 of the reporting year as the SEC currently requires, will lead to more reliable proved reserves estimates, as well as more meaningful estimates of those reserves' economic value. Estimating reserves requires consideration of both technical and economic components. In 1998, U.S. proved reserves of crude oil registered the largest percentage decline in 53 years. The annualized oil price decline from $17.40 per barrel in 1997 to $10.88 per barrel in 1998 had a significant impact on proved reserves. Moreover, using end of year prices [$15.04 per barrel in December 1997 to $8.03 in December 1998], further exacerbated the reduction in proved reserves for most producers and for the nation. As the oil price falls, each additional dollar decline has a proportionally larger negative impact on the reported volume of proved reserves.
The adoption of these new definitions of proved reserves by the EIA will not require respondents to change the way they report information on Form EIA-23.
Respondents should use the same methods when estimating reserves for the EIA as they do for the SEC. If there is an apparent conflict in requirements and assumptions, give precedence to the methods used for the SEC.
Operators should note in the footnotes whether end of year or annual average prices were used and whether probabilistic or deterministic methods were utilized at the field level.
Prospective respondents and other interested parties should comment on the actions discussed in Item II. The following guidelines are provided to assist in the preparation of comments. Please indicate to which form(s) your comments apply.
A. Is the proposed collection of information necessary for the proper performance of the functions of the agency and does the information have practical utility? Practical utility is defined as the actual usefulness of information to or for an agency, taking into account its accuracy, adequacy, reliability, timeliness and the agency's ability to process the information it collects.
B. What enhancements can be made to the quality, utility and clarity of the information to be collected?
A. Are the instructions and definitions clear and sufficient? If not, which instructions need clarification?
B. Can the information be submitted by the due date?
C. Public reporting burden for this collection is estimated to average 4 hours for small operators, 32 hours for intermediate operators, and 160 hours for large operators on Form EIA-23. In addition, proposed Form EIA-23 modifications are anticipated to reduce these reporting burden estimates for intermediate operators by 4 hours and for large operators by 16 hours. For operators reporting on Form EIA-23P, reporting burden is estimated at 15 minutes. For natural gas plant operators reporting on Form EIA-64A, the reporting burden is estimated at 6 hours. The estimated burden includes the total time, effort or financial resources expended to generate, maintain, retain, disclose and provide the information. Please comment on the accuracy of the burden estimates.
D. The agency estimates that the only costs to the respondents are for the time it will take them to complete the collection. Please comment if respondents will incur start-up costs for reporting or any recurring annual costs for operation, maintenance and purchase of services associated with the information collection.
E. What additional actions could be taken to minimize the burden of this collection of information? Such actions may involve the use of automated, electronic, mechanical or other technological collection techniques or other forms of information technology.
F. Does any other Federal, State or local agency collect similar information? If so, specify the agency, the data element(s) and the methods of collection.
A. Is the information useful at the levels of detail indicated on the form?
B. For what purpose(s) would the information be used? Be specific.
C. Are there alternate sources for the information and are they useful? If so, what are their weaknesses and/or strengths?
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the form. These comments will also become a matter of public record.
Section 3506 (c)(2)(A) of the Paperwork Reduction Act of 1995 (Pub. L. No. 104-13, 44 U.S.C. Chapter 35).
Take notice that on April 12, 2000, DTE-River Route No. 1, L.L.C. tendered for filing a response to Staff's deficiency
Copies of the filing were served upon parties to the above-captioned proceeding and the Michigan Public Service Commission.
Any person desiring to be heard or to protest such filing should file a motion to intervene or protest with the Federal Energy Regulatory Commission, 888 First Street, NE., DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). All such motions and protests should be filed on or before April 24, 2000. Protests will be considered by the Commission to determine the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection. This filing may also be viewed on the Internet at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice that on April 12, 2000, East Tennessee Natural Gas Company (East Tennessee) tendered for filing as part of its FERC Gas Tariff, Second Revised Volume No. 1, the tariff sheets listed in Appendix A to the filing, to be effective May 1, 2000:
East Tennessee states that, on March 14, 2000, East Tennessee was acquired from El Paso Energy (El Paso) and became a wholly owned subsidiary of Duke Energy Corporation (Duke). East Tennessee states that, pursuant to the Stock Purchase Agreement, El Paso entered into a Transition Agreement to ensure the smooth operation of the East Tennessee pipeline system for a period of up to nine months from the closing date (transition period). Among other things, the Transition Agreement requires El Paso to perform certain capacity management activities on behalf of East Tennessee for the daily operations of the system during the transition period.
East Tennessee states that, as part of El Paso's transition to interactive Internet communications in compliance with the Commission's Order No. 587-I, El Paso has undertaken a major rewrite of its pipelines' critical computer system functions (the “PASSKEY” system). El Paso has advised Duke that it intends to complete the move to the Internet by May 1, 2000. East Tennessee states that, because El Paso will be performing certain capacity management activities for East Tennessee utilizing the PASSKEY System during the transition period, East Tennessee is modifying its existing tariff and pro forma service agreements to reflect the system and tariff changes made by the El Paso pipelines.
East Tennessee states that the purpose of this filing is to obtain Commission approval for the tariff modifications in East Tennessee's tariff mirroring the El Paso pipelines' proposals in order to implement the PASSKEY System rewrite and the Service Upgrades by May 1, 2000 for the duration of the transition period and to update East Tennessee's mailing addresses and contact information as a result of the acquisition by Duke. At the end of the transition period, East Tennessee will file revised tariff sheets to reflect the end of the transition period and the implementation of the LINKr System for East Tennessee, and will make any additional changes necessary to conform the operations of the East Tennessee pipeline system with those of the other Duke pipelines.
East Tennessee states that copies of its filing have been mailed to all affected customers and interested state commissions.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426, in accordance with sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/rims.htm (call 202-208-2222 for assistance).
Take notice that on April 12, 2000, TransColorado Gas Transmission Company (TransColorado) tendered for filing to become part of its FERC Gas Tariff, Original Volume No. 1, the tariff sheets listed to Appendix A to the filing, to be effective May 15, 2000.
TransColorado states that due to a change in the TransColorado partnership, changes have been proposed to modify the reference to the person to whom communications should be addressed regarding TransColorado's tariff and references to a former partner, El Paso TransColorado Company, have been removed. In addition, miscellaneous tariff “clean-up” type revisions have also been made.
TransColorado states that a copy of this filing has been served upon TransColorado's customers, the Colorado Public Utilities Commission and New Mexico Public Regulatory Commission.
Any person desiring to be heard or to protest said filing should file a motion to intervene or a protest with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Sections 385.214 or 385.211 of the Commission's Rules and Regulations. All such motions or protests must be filed in accordance with Section 154.210 of the Commission's Regulations. Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceedings. Any person wishing to become a party must file a motion to intervene. Copies of this filing are on file with the Commission and are available for public inspection in the Public Reference Room. This filing may be viewed on the web at http://www.ferc.fed.us/online/
Take notice that the following application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
All documents (original and eight copies) should be filed with: David P. Boergers, Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington DC 20426.
Please include the project number (P-1389-025) on any comments or motions filed.
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
Comments, Protests, or Motions to Intervene—Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
Filing and Service of Responsive Documents—Any filings must bear in all capital letters the title “COMMENTS”, “RECOMMENDATIONS FOR TERMS AND CONDITIONS”, “PROTEST”, OR “MOTION TO INTERVENE”, as applicable, and the Project Number of the particular application to which the filing refers. Any of the above-named documents must be filed by providing the original and the number of copies provided by the Commission's regulations to: The Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426. A copy of any motion to intervene must also be served upon each representative of the Applicant specified in the particular application.
Agency Comments—Federal, state, and local agencies are invited to file comments on the described application. A copy of the application may be obtained by agencies directly from the Applicant. If an agency does not file comments within the time specified for filing comments, it will be presumed to have no comments. One copy of an agency's comments must also be sent to the Applicant's representatives.
Rule 2010 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure provides that, to eliminate unnecessary expense or improve administrative efficiency, the Secretary may establish a restricted service list for a particular phase or issue in a proceeding.
The Commission staff is consulting with the New York State Historic Preservation Officer (hereinafter, SHPO) and the Advisory Council on Historic Preservation (hereinafter, Council) pursuant to the Council's regulations, 36 CFR Part 800, implementing Section 106 of the National Historic Preservation Act, as amended (16 U.S.C. Section 470 f), to prepare a Programmatic Agreement for managing properties included in, or eligible for inclusion in, the National Register of Historic Places at the St. Lawrence-FDR Power Project (Project No. 2000-010).
The Programmatic Agreement, when executed by the Commission, the SHPO, and the Council, would satisfy the Commission's section 106 responsibilities for all individual undertakings, carried out in accordance with the license until the license expires or is terminated (36 CFR 800.14). The Commission's responsibilities pursuant to Section 106 for the above project would be fulfilled through the Programmatic Agreement, which the Commission proposes to draft in consultation with certain parties listed
The New York Power Authority, as prospective licensee for Project No. 2000-010, is invited to participate in consultations to develop the Programmatic Agreement and to sign as a concurring party to the Programmatic Agreement.
For purposes of commenting on the Programmatic Agreement, we propose to restrict the service list for the St. Lawrence-FDR Power Project as follows:
Any person on the official Service List for the above-captioned proceedings may request inclusion on the restricted service list, or may request that a restricted service list not be established, by filing a motion to that effect within 15 days of this notice date.
An original and 8 copies of any such motion must be filed with the Secretary of the Commission (888 First Street, NE, Washington, DC 20426) and must be served on each person whose name appears on the official Service list. If no such motions are filed, the restricted service list will be effective at the end of the 15 day period. Otherwise, a further notice will be issued ruling on the motion.
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501
Comments must be submitted on or before June 19, 2000.
1200 Pennsylvania Ave NW, Ariel Rios Building, Attn 3802R, Washington, DC 20460.
Leigh Pomponio, (202) 564-4364, e-mail:
The EPA would like to solicit comments to:
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
Environmental Protection Agency (EPA).
Notice.
The Local Government Advisory Committee will meet on May 11-12, 2000, in Denver, Colorado. Subcommittee sessions will take place on May 12th. The Committee will engage in a strategic planning exercise during this meeting in order to determine their agenda and structure through the end of 2001 and develop work plans to accomplish their goals.
The Committee will hear comments from the public between 2:45 p.m. and 3:00 p.m. on May 11th. Each individual or organization wishing to address the Committee will be allowed a minimum of three minutes. Please contact the Designated Federal Officer (DFO) at the number listed below to schedule agenda time. Time will be allotted on a first come, first serve basis.
This is an open meeting and all interested persons are invited to attend. Meeting minutes will be available after the meeting and can be obtained by written request from the DFO. Members of the public are requested to call the DFO at the number listed below if planning to attend so that arrangements can be made to comfortably accommodate attendees as much as possible. However, seating will be on a first come, first serve basis.
The meeting will begin at 9:00 a.m. on Thursday, May 11th and conclude at 4:00 p.m. on the 12th.
The meetings will be held in Denver, Colorado at the EPA Region VIII Office located at 999 18th Street in the Rocky Mountain and Bison Conference Rooms.
Requests for Minutes and other information can be obtained by writing the DFO at 1200 Pennsylvania Avenue, NW (1306A), Washington, DC 20460.
The DFO for this Committee is Denise Zabinski Ney. She is the point of contact for information concerning any Committee matters and can be reached by calling (202) 564-3684 or by email at ney.denise@epa.gov.
Environmental Protection Agency.
Notice; request for public comment.
In accordance with Section 122(i) of the Comprehensive Environmental Response, Compensation, and Liability Act, as amended (“CERCLA”), notice is hereby given of a proposed administrative cost recovery settlement under Section 122(h)(1) of CERCLA concerning the Double A Metals Site at 3321 South Pulaski, Chicago, Illinois (“Site”), which was signed by the EPA Director, Superfund Division, Region 5, on March 31, 2000. The settlement resolves an EPA claim under Section 107(a) of CERCLA against V.M.S. & D. Realty, Inc. The settlement requires the settling party to pay, to the Hazardous Substances Superfund, $106,763.45 and thirty (30) percent of any settlement or judgment amount that resolves issues related to the property transfer of the Site from Jepscor Metals, Inc. to V.M.S. & D. Realty, Inc.
For thirty (30) days following the date of publication of this notice, the Agency will receive written comments relating to the settlement. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the settlement is inappropriate, improper, or inadequate. The Agency's response to any comments received will be available for public inspection at the Superfund Records Center, located at 77 West Jackson Boulevard, Seventh Floor, Chicago, Illinois.
Comments must be submitted on or before May 22, 2000.
The proposed settlement and additional background information relating to the settlement are available for public inspection at Superfund Records Center, located at 77 West Jackson Boulevard, Seventh Floor, Chicago, Illinois. A copy of the proposed settlement may be obtained from Superfund Records Center, located at 77 West Jackson Boulevard, Seventh Floor, Chicago, Illinois. Comments should reference the Double A Metals Site and EPA Docket No. V-W-00-C-587 and should be addressed to Steven J. Murawski, Assistant Regional Counsel, 77 West Jackson Boulevard (C-14J), Chicago, Illinois, 60604.
Steven J. Murawski, Assistant Regional Counsel, 77 West Jackson Boulevard (C-14J), Chicago, Illinois, 60604.
Environmental Protection Agency (EPA).
Notice.
On November 1, 1999, the State of Michigan submitted an application for EPA approval to administer and enforce training and certification requirements, training program accreditation requirements, and work practice standards for lead-based paint activities in target housing and child-occupied facilities under section 402 of the Toxic Substances Control Act (TSCA). This notice announces the receipt of Michigan's application, provides a 45-day public comment period, and provides an opportunity to request a public hearing on the application. The State of Michigan has provided a certification
Comments, identified by docket control number PB-402404-MI, must be received on or before June 5, 2000. In addition, a public hearing request may be submitted on or before June 5, 2000.
Comments and the public hearing request may be submitted by mail, electronically, or in person. Please follow the detailed instructions for each method as provided in Unit I. of the
David Turpin, Regional Lead Coordinator, Environmental Protection Agency, Region V, Pesticides and Toxics Branch, 77 West Jackson Boulevard (DT-8J), Chicago, IL 60604; telephone: (312) 886-7836; e-mail address: turpin.david@epa.gov.
This action is directed to the public in general. This action may, however, be of interest to firms and individuals engaged in lead-based paint activities in the State of Michigan. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under
1.
2.
You may submit comments and hearing requests through the mail, in person, or electronically. To ensure proper receipt by EPA, it is imperative that you identify docket control number PB-402404-MI in the subject line on the first page of your response.
1.
2.
3.
Do not submit any information electronically that you consider to be CBI. You may claim information that you submit to EPA in response to this document as CBI by marking any part or all of that information as CBI. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2. In addition to one complete version of the comment that includes any information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public version of the official record. Information not marked confidential will be included in the public version of the official record without prior notice. If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified under
The State of Michigan has provided a certification letter stating that its lead-based paint training and certification program meets the requirements for authorization of a State program under section 404 of TSCA and has requested approval of the State of Michigan's lead-based paint training and certification program. Therefore, pursuant to section 404 of TSCA, the program is deemed authorized as of the date of submission (i.e., November 1, 1999). If EPA subsequently finds that the program does not meet all the requirements for approval of a State program, EPA will work with the State to correct any deficiencies in order to approve the program. If the deficiencies are not corrected, a notice of disapproval will be issued in the
Pursuant to section 404(b) of TSCA (15 U.S.C. 2684(b)), EPA provides notice and an opportunity for a public hearing on a State or Tribal program application before approving the application. Therefore, by this notice EPA is soliciting public comment on whether
On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. That Act amended TSCA (15 U.S.C. 2601
Section 402 of TSCA authorizes and directs EPA to promulgate final regulations governing lead-based paint activities in target housing, public and commercial buildings, bridges, and other structures. Those regulations are to ensure that individuals engaged in such activities are properly trained, that training programs are accredited, and that individuals engaged in these activities are certified and follow documented work practice standards. Under section 404 of TSCA, a State may seek authorization from EPA to administer and enforce its own lead-based paint activities program.
On August 29, 1996 (61 FR 45777) (FRL-5389-9), EPA promulgated final TSCA section 402/404 regulations governing lead-based paint activities in target housing and child-occupied facilities (a subset of public buildings). Those regulations are codified at 40 CFR part 745, and allow both States and Indian Tribes to apply for program authorization. Pursuant to section 404(h) of TSCA, EPA is to establish the Federal program in any State or Tribal Nation without its own authorized program in place by August 31, 1998.
States and Tribes that choose to apply for program authorization must submit a complete application to the appropriate Regional EPA Office for review. Those applications will be reviewed by EPA within 180 days of receipt of the complete application. To receive EPA approval, a State or Tribe must demonstrate that its program is at least as protective of human health and the environment as the Federal program, and provides for adequate enforcement (section 404(b) of TSCA, 15 U.S.C. 2684(b)). EPA's regulations (40 CFR part 745, subpart Q) provide the detailed requirements a State or Tribal program must meet in order to obtain EPA approval.
A State may choose to certify that its lead-based paint activities program meets the requirements for EPA approval, by submitting a letter signed by the Governor or Attorney General stating that the program meets the requirements of section 404(b) of TSCA. Upon submission of such certification letter, the program is deemed authorized. This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.
The following summary of the State of Michigan's proposed program has been provided by the applicant. Michigan Public Health Code, Act No. 368 of the Public Acts of 1978 assigns to the Michigan Department of Community Health (MDCH), among other responsibilities, the continuous and diligent endeavor to prevent disease, prolong life, and promote the public health through organized programs, including prevention and control of environmental health hazards; prevention and control of diseases; prevention and control of health problems of particularly vulnerable population groups. In carrying out its responsibility, the department shall:
1. Have general supervision of the interests of the health and life of the people of the state.
2. Implement and enforce laws for which responsibility is vested in the Department.
3. Make investigations and inquiries as to the causes, prevention and control of environmental health hazards, nuisances and sources of illness.
The Department may exercise authority and promulgate rules to properly safeguard the public health; to prevent the spread of diseases and the existence of sources of contamination; and to implement and carry out the powers of and duties vested by law in the Department. To assure compliance with laws enforced by the Department, the Department may inspect, investigate, or authorize inspections and investigations to be made.
The Lead Abatement Act, Public Acts 219 and 220 of 1998 enacted legislation to address lead-based paint hazards. The Michigan Department of Community Health, Community Public Health Administration's Lead Hazard Remediation Program (LHRP), is the recognized agency for the administration of the lead hazard control regulations. These regulations ensure that persons engaged in lead-based paint activities perform them in a safe manner to prevent exposure of building occupants to lead hazards. Individuals conducting lead-based paint inspections, risk assessments and abatements in target housing and child-occupied facilities are required to be properly trained and certified.
Michigan lead hazard remediation regulations also require the accreditation of training providers, establish a lead poisoning education and prevention program, establish work practice standards for lead-based paint activities, define rights and duties of regulated persons, and prescribe enforcement actions and noncompliance remedies.
All persons providing training in lead-based paint identification and abatement must be accredited. Accreditation of the training program is contingent upon the training program employing a training manager who meets the qualifications set forth in the promulgated rules. Training courses must include designated curricula for respective disciplines, and maintenance of records.
Lead professionals such as inspectors, risk assessors, supervisors and abatement workers must be certified. Individuals seeking certification or re-certification shall successfully complete an accredited training course in the appropriate discipline, pass a third party certification examination within 6 months of course completion, and meet the appropriate experience and education requirements for each discipline.
Work practice standards for conducting lead-based paint activities such as an inspection, lead-hazard screen, risk assessment or abatement have been established by statute and promulgated rules. These activities may only be performed by certified individuals in accordance with documented methodologies.
Authority for enforcement actions is established for the Michigan Department of Community Health under sections 5466(1), 5475(2) and 5476(2) of the Lead Abatement Act of 1998, being sections 333.5466, 333.5475, and 333.5476 of the Michigan Compiled Laws, and Rule 325.9925.
Section 404(b) of TSCA makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved State or Tribal program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Hazardous substances, Lead, Reporting and recordkeeping requirements.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection(s), as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before June 19, 2000. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Les Smith, Federal Communications Commissions, Room 1 A-804, 445 Twelfth Street, SW, Washington, DC 20554 or via the Internet to lesmith@fcc.gov.
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at lesmith@fcc.gov.
Section 74.783(e) permits any low power television (LPTV) station to request a four-letter call sign after receiving its construction permit. All initial LPTV construction permits will continue to be issued with a five-character LPTV call sign. This Report and Order requires LPTV respondents to use the on-line electronic system. To enable these respondents to use this on-line system, the Commission eliminated the requirement that holders of LPTV construction permits submit with their call sign requests a certification that the station has been constructed, that physical construction is underway at the transmitter site, or that a firm equipment order has been placed. The on-line reservation and authorization system was approved by OMB under Control Number 3060-0188. All burden associated with call sign requests are included in Control Number 3060-0188.
Section 74.783(b) requires television translator stations, whose station
The furnishing of current information is used by the primary station licensee and/or FCC staff in field investigations to contact the translator licensee in the event of malfunction of the translator.
The Federal Communications Commission, as part of its continuing effort to reduce paperwork burden invites the general public and other Federal agencies to take this opportunity to comment on the following information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. An agency may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act (PRA) that does not display a valid control number. Comments are requested concerning (a) whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimate; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology.
Written comments should be submitted on or before June 19, 2000. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.
Direct all comments to Les Smith, Federal Communications Commissions, 445 12th Street, S.W., Room 1-A804, Washington, DC 20554 or via the Internet to lesmith@fcc.gov.
For additional information or copies of the information collections contact Les Smith at (202) 418-0217 or via the Internet at lesmith@fcc.gov.
Federal Communications Commission.
Notice.
This public notice announces the procedures and minimum opening bids for the upcoming auction of licenses for fixed and mobile services in the 746-747/776-777 and 762-764/792-794 MHz bands (“Auction No. 33”) scheduled to commence on June 14, 2000.
Auction No. 33 is scheduled for June 14, 2000.
This is a summary of a Public Notice released April 10, 2000. The complete text of the public notice, including Attachments A through H, is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC. Attachments C, D, and H where corrected in DA 00-850, released April 13, 2000 and is also available in the FCC Reference Center. It may also be purchased from the Commission's copy contractor, International Transcription Services, Inc. (ITS, Inc.) 1231 20th Street, NW, Washington, D.C. 20036, (202) 857-3800. It is also available on the Commission's web site at
1. This public notice announces the procedures and minimum opening bids for the upcoming auction of licenses for fixed and mobile services in the 746-747/776-777 and 762-764/792-794 MHz bands (“Auction No. 33”). On March 10, 2000, the Wireless Telecommunications Bureau (“Bureau”) released a public notice, seeking comment on the establishment of reserve prices or minimum opening bids for Auction No. 33, in accordance with the Balanced Budget Act of 1997.
2. The 746-806 MHz band has historically been used exclusively by television stations (Channels 60-69). Incumbent analog television broadcasters are permitted by statute to continue operations in this band until their markets are converted to digital television (“DTV”).
3. The licenses available in this auction consist of one 4 megahertz license (a pair of 2 megahertz blocks) and one 2 megahertz license (a pair of 1 megahertz blocks) in each of 52 Major Economic Areas (MEAs). These licenses are listed in this public notice on Attachment A. The following table contains the Block/Frequency Band cross-references for Auction No. 33:
4. Prospective bidders must familiarize themselves thoroughly with the Commission's rules relating to the 700 MHz band, contained in title 47, part 27 of the Code of Federal Regulations, and those relating to application and auction procedures, contained in title 47, part 1 of the Code of Federal Regulations.
5. Prospective bidders must also be thoroughly familiar with the procedures, terms and conditions (collectively, “Terms”) contained in this public notice; the
6. The terms contained in the Commission's rules, relevant orders and public notices are not negotiable. The Commission may amend or supplement the information contained in our public notices at any time, and will issue public notices to convey any new or supplemental information to bidders. It is the responsibility of all prospective bidders to remain current with all Commission rules and with all public notices pertaining to this auction. Copies of most Commission documents, including public notices, can be retrieved from the FCC Internet node via anonymous ftp@ftp.fcc.gov or the FCC Auctions World Wide Web site at
7. To ensure the competitiveness of the auction process, the Commission's rules prohibit applicants for the same geographic license area from communicating with each other during the auction about bids, bidding strategies, or settlements. This prohibition begins with the filing of short-form applications, and ends on the down payment due date after the auction. Bidders competing for licenses in the same geographic license areas are encouraged not to use the same individual as an authorized bidder. A violation of the anti-collusion rule could occur if an individual acts as the authorized bidder for two or more competing applicants, and conveys information concerning the substance of bids or bidding strategies between the bidders he/she is authorized to represent in the auction. Also, if the authorized bidders are different individuals employed by the same organization (
8. The Bureau, however, cautions that merely filing a certifying statement as part of an application will not outweigh specific evidence that collusive behavior has occurred nor will it preclude the initiation of an investigation when warranted. In Auction No. 33, for example, the rule would apply to any applicants bidding for the same MEA. Therefore, applicants that apply to bid for “all markets” would be precluded from communicating with all other applicants after filing the FCC Form 175. However, applicants may enter into bidding agreements
9. Section 337(d)(4) of the Budget Act requires that the Commission establish rules insuring that public safety services licensees using spectrum reallocated pursuant to subsection (a)(1) shall not be subject to harmful interference from television broadcast licensees. The Conference Report pertaining to that section states that the Commission should ensure that public safety service licensees in the 746-806 MHz band “continue to operate free of interference from any new commercial licensees.” To achieve this end, the Commission established “Guard Bands” in the 746-747 MHz, 762-764 MHz, 776-777 MHz, and 792-794 MHz bands. The Commission required that entities operating in the Guard Bands adhere to the same out-of-band emission (“OOBE”) criteria that was adopted for 700 MHz public safety users. In addition, these entities must coordinate their frequency use with public safety frequency coordinators and also comply with the adjacent channel coupled power out-of-band emission limits. In addition, operations in the Guard Bands are restricted to entities that do not use a cellular system architecture.
10. Licensees operating on the spectrum associated with Channels 60, 62, 65, and 67 must comply with the co-channel and adjacent channel provisions of § 27.60 of our rules. For example, an entity operating on any portion of the 746-747 MHz Guard Band, which is contained in Channel 60, must provide co-channel protection to Channel 60, and adjacent channel protection to Channels 59 and 61.
11. As the Commission noted in the
12. There are currently separate agreements with Canada and Mexico covering TV broadcast use of the UHF 470-806 MHz band. Such agreements do not reflect the additional use or services adopted in the
13. The FCC makes no representations or warranties about the use of this spectrum for particular services. Applicants should be aware that an FCC auction represents an opportunity to become an FCC licensee in this service, subject to certain conditions and regulations. An FCC auction does not constitute an endorsement by the FCC of any particular services, technologies or products, nor does an FCC license constitute a guarantee of business success. Applicants should perform their individual due diligence before proceeding as they would with any new business venture.
14. Potential bidders are reminded that there are a number of incumbent broadcast television licensees already
15. These limitations may restrict the ability of such geographic licensees to use certain portions of the electromagnetic spectrum or provide service to certain regions in their geographic license areas. Listed in Attachment J are the facilities of incumbent television permittees and licensees on television Channels 59-68. However, prospective bidders should not rely solely on this list, but should carefully review the Commission's databases and records before formulating bidding strategies. Records relating to these stations are available for public inspection during regular business hours in the Reference Information Center at the Federal Communications Commission, 445 Twelfth Street, SW, CY-A257, Washington, DC 20554. The Commission makes no representation or guarantees regarding the accuracy or completeness of the information in Attachment J. In addition, the Commission makes no representations or guarantees regarding the accuracy or completeness of information that has been provided by incumbent licensees and incorporated into the databases. Potential bidders are strongly encouraged to physically inspect any sites located in or near the geographic area for which they plan to bid.
Potential bidders should also be aware of the following filings:
• QUALCOMM Incorporated, Petition for Declaratory Ruling Giving Effect to the Mandate of the District of Columbia Circuit Court of Appeals, Service Rules for the 746-764 and 776-794 MHz Bands and Revisions to Part 27 of the Commission's Rules, Petition for Declaratory Ruling (filed January 28, 2000).
• “Wireless Telecommunications Bureau Seeks Comment On QUALCOMM Incorporated's Petition for Declaratory Ruling Seeking 700 MHz Band License Pursuant to Ruling of U.S. Circuit Court of Appeals,”
16. All applicants must certify on their FCC Form 175 applications under penalty of perjury that they are legally, technically, financially and otherwise qualified to hold a license, and not in default on any payment for Commission licenses (including down payments) or delinquent on any non-tax debt owed to any Federal agency. Prospective bidders are reminded that submission of a false certification to the Commission is a serious matter that may result in severe penalties, including monetary forfeitures, license revocations, exclusion from participation in future auctions, and/or criminal prosecution.
17. As is the case with many business investment opportunities, some unscrupulous entrepreneurs may attempt to use Auction No. 33 to deceive and defraud unsuspecting investors. Common warning signals of fraud include the following:
• The first contact is a “cold call” from a telemarketer, or is made in response to an inquiry prompted by a radio or television infomercial.
• The offering materials used to invest in the venture appear to be targeted at IRA funds, for example by including all documents and papers needed for the transfer of funds maintained in IRA accounts.
• The amount of the minimum investment is less than $25,000.
• The sales representative makes verbal representations that: (a) The Internal Revenue Service (“IRS”), Federal Trade Commission (“FTC”), Securities and Exchange Commission (“SEC”), FCC, or other government agency has approved the investment; (b) the investment is not subject to state or federal securities laws; or (c) the investment will yield unrealistically high short-term profits. In addition, the offering materials often include copies of actual FCC releases, or quotes from FCC personnel, giving the appearance of FCC knowledge or approval of the solicitation.
18. Information about deceptive telemarketing investment schemes is available from the FTC at (202) 326-2222 and from the SEC at (202) 942-7040. Complaints about specific deceptive telemarketing investment schemes should be directed to the FTC, the SEC, or the National Fraud Information Center at (800) 876-7060. Consumers who have concerns about specific 700 MHz proposals may also call the FCC Consumer Center at (888) CALL-FCC ((888) 225-5322).
(vii) National Environmental Policy Act (NEPA) Requirements
19. The licensee must comply with the Commission's rules regarding the National Environmental Policy Act (NEPA). The construction of a 700 MHz facility is a federal action and the permitee must comply with the Commission's NEPA rules for each such facility.
20. The auction will begin on Wednesday, June 14, 2000. The initial schedule for bidding will be announced by public notice at least one week before the start of the auction. Unless otherwise announced, bidding on all licenses will be conducted on each business day until bidding has stopped on all licenses.
21. Auction No. 33—700 MHz Guard Band
22. The bidding methodology for Auction No. 33 will be simultaneous multiple round bidding. Bidding will be permitted only from remote locations, either electronically (by computer) or telephonically.
23. The following are important events and deadlines related to Auction No. 33:
24. Those wishing to participate in the auction must:
• Submit a short form application (FCC Form 175) electronically by 6 p.m. ET, May 9, 2000.
• Submit a sufficient upfront payment and an FCC Remittance Advice Form (FCC Form 159) by 6 p.m. ET May 26, 2000.
• Comply with all provisions outlined in this public notice.
25. The following is a list of general contact information relating to Auction No. 33:
General Auction Questions
26. Guidelines for completion of the short-form (FCC Form 175) are set forth in Attachment D to this public notice. The short-form application seeks the applicant's name and address, legal classification, status, bidding credit eligibility, identification of the authorization(s) sought, the authorized bidders and contact persons, and specific ownership information.
27. All applicants must comply with the uniform part 1 ownership disclosure standards and provide information required by §§ 1.2105 and 1.2112 of the Commission's rules. Specifically, in completing Form 175, applicants will be required to file an Exhibit A providing a full and complete statement of the ownership of the bidding entity. The ownership disclosure standards for the short-form are set forth in § 1.2112 of the Commission's rules.
28. Applicants will be required to identify on their short-form applications any parties with whom they have entered into any consortium arrangements, joint ventures, partnerships or other agreements or understandings which relate in any way to the licenses being auctioned, including any agreements relating to post-auction market structure.
29. A party holding a non-controlling, attributable interest in one applicant will be permitted to acquire an ownership interest in, form a consortium with, or enter into a joint bidding arrangement with other applicants for construction permits in the same geographic license area provided that (i) the attributable interest holder(s) certify that it has not and will not communicate with any party concerning the bids or bidding strategies of more than one of the applicants in which it holds an attributable interest, or with which it has formed a consortium or entered into a joint bidding arrangement; and (ii) the arrangements do not result in a change in control of any of the applicants. While the anti-collusion rules do not prohibit non-auction related business negotiations among auction applicants,
30. In the
31. Bidding credits are available to small businesses and very small businesses as defined in 47 CFR 27.502(a). For purposes of determining which entities qualify as very small businesses or small businesses, the Commission will consider the gross revenues of the applicant, its controlling interests, and affiliates of the applicant and its controlling interests. The Commission does not impose specific equity requirements on controlling interests. Once principals or entities with a controlling interest are determined, only the revenues of those principals or entities, the applicant and its affiliates will be counted in determining small business eligibility. The term “control” includes both
• The entity constitutes or appoints more than 50 percent of the board of directors or management committee;
• The entity has authority to appoint, promote, demote, and fire senior executives that control the day-to-day activities of the licensee; or
• The entity plays an integral role in management decisions.
32. A consortium of small businesses, or very small businesses is a conglomerate organization formed as a joint venture between or among mutually independent business firms, each of which
33. Applicants must file supporting documentation as Exhibit C to their FCC Form 175 short form applications to establish that they satisfy the eligibility requirements to qualify as a small business or very small business (or consortia of small or very small businesses) for this auction. Specifically, for Auction No. 33, applicants applying to bid as small or very small businesses (or consortia of small or very small businesses) will be required to disclose on Exhibit C to their FCC Form 175 short-form applications,
34. Applicants that qualify under the definitions of small business and very small business (or consortia of small or very small businesses) as are set forth in 47 CFR 27.502, are eligible for a bidding credit that represents the amount by which a bidder's winning bids are discounted. The size of a bidding credit in the 700 MHz guard band auction depends on the average gross revenues for the preceding three years of the bidder and its controlling interests and affiliates:
• A bidder with average gross revenues of not more than $40 million for the preceding three years receives a 15 percent discount on its winning bids for 700 MHz Guard Band manager licenses (“small business”);
• A bidder with average gross revenues of not more than $15 million for the preceding three years receives a 25 percent discount on its winning bids for 700 MHz Guard Band manager licenses (“very small business”).
35. Bidding credits are not cumulative: qualifying applicants receive either the 15 percent or the 25 percent bidding credit, but not both.
36. Bidders in Auction No. 33 should note that unjust enrichment provisions apply to winning bidders that use bidding credits and subsequently assign or transfer control of their licenses to an entity not qualifying for the same level of bidding credit. Finally, bidders should also note that there are no installment payment plans in Auction No. 33.
37. Applicants owned by minorities or women, as defined in 47 CFR 1.2110(b)(2), may attach an exhibit (Exhibit D) regarding this status. This applicant status information is collected for statistical purposes only and assists the Commission in monitoring the participation of “designated entities” in its auctions. Applicants wishing to submit additional information may do so in Exhibit E, Miscellaneous Information to the FCC Form 175.
38. After the short-form filing deadline (May 9, 2000), applicants may make only minor changes to their FCC Form 175 applications. Applicants will not be permitted to make major modifications to their applications (
39. Applicants have an obligation under 47 CFR 1.65, to maintain the completeness and accuracy of information in their short-form applications. Amendments reporting substantial changes of possible decisional significance in information
40. On Thursday, April 27, 2000, the FCC will sponsor a free seminar for Auction No. 33 at the Federal Communications Commission, located at 445 12th Street, S.W., Washington, D.C. The seminar will provide attendees with information about pre-auction procedures, conduct of the auction, FCC remote bidding software, and the 700 MHz Guard Band service and auction rules. The seminar will also provide an opportunity for prospective bidders to ask questions of FCC staff.
41. To register, complete the registration form that is included as Attachment B of this public notice and submit it by Tuesday, April 25, 2000. Registrations are accepted on a first-come, first-served basis.
42. In order to be eligible to bid in this auction, applicants must first submit a FCC Form 175 application. This application must be submitted electronically and received at the Commission by 6 p.m. ET on May 9, 2000. Late applications will not be accepted.
43. There is no application fee required when filing a FCC Form 175. However, to be eligible to bid, an applicant must submit an upfront payment.
44. Applicants must file their FCC Form 175 applications electronically. Applications may generally be filed at any time from April 27, 2000 until 6 p.m. ET on May 9, 2000. Applicants are strongly encouraged to file early, and applicants are responsible for allowing adequate time for filing their applications. Applicants may update or amend their electronic applications multiple times until the filing deadline on May 9, 2000.
45. Information about accessing the FCC Form 175 is included in Attachment C. Technical support is available at (202) 414-1250 (voice) or (202) 414-1255 (text telephone (TTY)); the hours of service are 8 a.m. to 6 p.m. ET, Monday through Friday.
46. Applicants must carefully review 47 CFR 1.2105, and must complete all items on the FCC Form 175. Instructions for completing the FCC Form 175 are in Attachment D of this public notice. Applicants are encouraged to begin preparing the required attachments for FCC Form 175 prior to submitting the form. Attachments C and D to this public notice provide information on the required attachments and appropriate formats.
47. The FCC Form 175 electronic review system may be used to review and print applicants' FCC Form 175 information. Applicants may also view other applicants' completed FCC Form 175s after the filing deadline has passed and the FCC has issued a public notice explaining the status of the applications. For this reason, it is important that applicants do not include their Taxpayer Identification Numbers (TINs) on any Exhibits to their FCC Form 175 applications. See Attachment C for details on accessing the review system.
48. After the deadline for filing the FCC Form 175 applications has passed, the FCC will process all timely submitted applications to determine which are acceptable for filing, and subsequently will issue a public notice identifying: (a) those applications accepted for filing (including FCC account numbers and the licenses for which they applied); (b) those applications rejected; and (c) those applications that have minor defects that may be corrected, and the deadline for filing such corrected applications.
49. As described more fully in the Commission's rules, after the May 9, 2000, short form filing deadline, applicants may make only minor corrections to their FCC Form 175 applications. Applicants will not be permitted to make major modifications to their applications (e.g., change their license selections, change the certifying official, change control of the applicant, or change bidding credit eligibility).
50. In order to be eligible to bid in the auction, applicants must submit an upfront payment accompanied by a FCC Remittance Advice Form (FCC Form 159). After completing the FCC Form 175, filers will have access to an electronic version of the FCC Form 159 that can be printed and faxed to Mellon Bank in Pittsburgh, PA. All upfront payments must be received at Mellon Bank by 6 p.m. ET on May 26, 2000.
Please note that:
• All payments must be made in U.S. dollars.
• All payments must be made by wire transfer.
• Upfront payments for Auction No. 33 go to a lockbox number different from the ones used in previous FCC auctions, and different from the lockbox number to be used for post-auction payments.
• Failure to deliver the upfront payment by the May 26, 2000 deadline will result in dismissal of the application and disqualification from participation in the auction.
51. Wire transfer payments must be received at Mellon Bank by 6 p.m. ET on May 26, 2000. To avoid untimely payments, applicants should discuss arrangements (including bank closing schedules) with their banker several days before they plan to make the wire transfer, and allow sufficient time for the transfer to be initiated and completed before the deadline. Applicants will need the following information:
The BNF and Lockbox number are specific to the upfront payments for this auction; do not use BNF or Lockbox numbers from previous auctions.
52. Applicants must fax a completed FCC Form 159 to Mellon Bank at (412) 236-5702 at least one hour before placing the order for the wire transfer (but on the same business day). On the cover sheet of the fax, write “Wire Transfer—Auction Payment for Auction Event No. 33.”
53. A completed FCC Remittance Advice Form (FCC Form 159) must be faxed to Mellon Bank to accompany each upfront payment wire transfer. Proper completion of FCC Form 159 is critical to ensuring correct credit of upfront payments. Detailed instructions for completion of FCC Form 159 are included in Attachment E to this public
54. In the Part 1 Order, Memorandum Opinion and Order, and Notice of Proposed Rule Making (
55. Comments concerning the proposed upfront payment were submitted by AMTA, and Motorola. According to Motorola, the proposed amounts for upfront payments are extremely high given the level of incumbency and restrictions required of licensees in this band. Furthermore, Motorola argues that a Guard Band Manager, where TV incumbency is an issue, may not realize any return on its license investment until December of 2006 and Guard Band Managers are unlikely to be in a position to assess the nature of adjacent commercial operations prior to bidding. Moreover, Motorola claims that the proposed upfront payments preclude participation by small business and private land mobile coordinators. To address these concerns, Motorola urges that the Bureau use the same formula employed in the 1999 220 MHz auction (“Auction No. 24”) to set minimum opening bids and upfront payments. According to Motorola, applying the formula in this proceeding would result in upfront payments that total $2,108,178 for Block A and $4,209,287 for Block B licenses. AMTA raises similar concerns in recommending that the Commission reduce the upfront payments to one-third or one-quarter of their current valuations. AMTA also notes that this spectrum is affected by the existence of co-channel or adjacent channel television broadcast stations in virtually every market of significant size around the nation and that these licensees are not required to vacate the spectrum until 2006 and that some licensees may be eligible for an extension of that deadline. AMTA cites several other factors, including anticipated interference from Commercial Mobile Radio Service (“CMRS”) operating in the neighboring 30 MHz and the technical requirement that must be adopted to ensure interference protection for public safety systems.
56. In its reply comments, AMTA points out that all parties who addressed this issue took the position that the proposed upfront payments are too high. AMTA cites several factors in support of its position. AMTA urges that the Commission use the upfront payments proposed by Motorola as absolute upper limits, with further reductions in markets that are encumbered. In its reply comments, ITA strongly supports Motorola's alternative formula for use in calculating upfront payments. Similarly, Mobex, in its reply comments, stated that adoption of such a standard will provide better assurance that the Guard Band licenses will be sold, in keeping with the Commission's goals to provide spectrum to the public at a reasonable price in an expeditious manner. MRFAC emphasizes on reply that if the Commission hopes to ensure true competitive bidding between and among a variety of qualified bidders, it should significantly reduce the amounts proposed for upfront payments. On reply, PCIA questions the amount of the proposed upfront payment in light of the incumbency on the channels, the fact that most of the spectrum to be auctioned will be unusable for six years, the fact that the licensing format is new and untested, the cost associated with being a Band Manager, and the level of interference protection that must be provided to adjacent channel public safety systems.
57. Upon careful consideration of the comments and reply comments, the Bureau has decided to exercise its discretion to adjust the upfront payments and has set them forth in Attachment A. The revised figures are approximately one-third of the original proposal. In making this reduction, we recognize the concerns expressed regarding incumbency and interference issues and uncertainty in when the spectrum may become unencumbered. We also respond to concerns raised concerning the opportunity for small businesses to participate in this auction.
58. Please note that upfront payments are not attributed to specific licenses, but instead will be translated to bidding units to define a bidder's maximum bidding eligibility. For Auction No. 33, the amount of the upfront payment will be translated into bidding units on a one-to-one basis,
59. In order to be able to place a bid on a license, in addition to having specified that license on the FCC Form 175, a bidder must have an eligibility level that meets or exceeds the number of bidding units assigned to that license. At a minimum, an applicant's total upfront payment must be enough to establish eligibility to bid on at least one of the licenses applied for on the FCC Form 175, or else the applicant will not be eligible to participate in the auction.
60. In calculating its upfront payment amount, an applicant should determine the
An applicant may, on its FCC Form 175, apply for every license being offered, but its actual bidding in any round will be limited by the bidding units reflected in its upfront payment.
61. The Commission will use wire transfers for all Auction No. 33 refunds. To ensure that refunds of upfront payments are processed in an expeditious manner, the Commission is requesting that all pertinent information as listed be supplied to the FCC. Applicants may either submit the information electronically after filing their short-form application or fax the wire transfer instructions by May 26, 2000, to the FCC, Financial Operations Center, Auctions Accounting Group, ATTN: Michelle Bennett or Gail Glasser, at (202) 418-2843. Should the payer fail to submit the requested information, the refund will be returned to the original payer. For additional information, please call (202) 418-1995.
62. Approximately ten days before the auction, the FCC will issue a public notice announcing all qualified bidders for the auction. Qualified bidders are those applicants whose FCC Form 175 applications have been accepted for filing and have timely submitted upfront payments sufficient to make them eligible to bid on at least one of the licenses for which they applied.
63. All qualified bidders are automatically registered for the auction. Registration materials will be distributed prior to the auction by two separate overnight mailings, each containing a portion of the confidential identification codes required to place bids. These mailings will be sent only to the contact person at the contact address listed in the FCC Form 175.
64. Applicants that do not receive both registration mailings will not be able to submit bids. Therefore, any qualified applicant that has not received both mailings by noon on Friday, June 9, 2000, must contact the Auctions Hotline at 717-338-2888. Receipt of both registration mailings is critical to participating in the auction and each applicant is responsible for ensuring it has received all of the registration material.
65. Qualified bidders should note that lost login codes, passwords or bidder identification numbers can be replaced only by appearing
66. Qualified bidders are allowed to bid electronically or by telephone. If choosing to bid electronically, each bidder must purchase their own copy of the remote electronic bidding software. Electronic bids will only be accepted from those applicants purchasing the software. However, the software may be copied by the applicant for use by its authorized bidders at different locations. The price of the FCC's remote bidding software is $175.00 and must be ordered by Tuesday, May 30, 2000. For security purposes, the software is only mailed to the contact person at the contact address listed on the FCC Form 175. Please note that auction software is tailored to a specific auction, so software from prior auctions will not work for Auction No. 33. If bidding telephonically, the telephonic bidding phone number will be supplied in the second Federal Express mailing of confidential login codes. Qualified bidders that do not purchase the software may only bid telephonically. To indicate your bidding preference, an FCC Bidding Preference/Remote Software Order Form can be accessed when submitting the FCC Form 175 and completed electronically. A copy of this form is included as Attachment F in this public notice.
67. All qualified bidders will be eligible to participate in a mock auction scheduled for Monday, June 12, 2000. The mock auction will enable applicants to become familiar with the electronic software prior to the auction. Free demonstration software will be available for use in the mock auction. Participation by all bidders is strongly recommended. Details will be announced by public notice.
68. The first round of bidding for Auction No. 33 will begin on Wednesday, June 14, 2000. The initial bidding schedule will be announced in the public notice listing the qualified bidders which is released approximately 10 days before the start of the auction.
69. In the
70. In the
71. For Auction No. 33 we will adopt this proposal. The amount of the upfront payment submitted by a bidder determines the initial maximum eligibility (in bidding units) for each bidder. Note again that upfront payments are not attributed to specific licenses, but instead will be translated into bidding units to define a bidder's initial maximum eligibility. The total upfront payment defines the maximum number of bidding units on which the applicant will initially be permitted to bid. As there is no provision for increasing a bidder's maximum eligibility during the course of an auction (as described under “Auction Stages” as set forth in part IV.A.(iv), prospective bidders are cautioned to calculate their upfront payments carefully. The total upfront payment does not define the total dollars a bidder may bid on any given license.
72. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until the end before participating. Bidders are required to be active on a specific percentage of their maximum eligibility during each round of the auction.
73. A bidder's activity level in a round is the sum of the bidding units associated with licenses on which the bidder is active. A bidder is considered active on a license in the current round if it is either the high bidder at the end of the previous bidding round and does not withdraw the high bid in the current round, or if it submits an acceptable bid in the current round (
74. In the
75. Based upon our experience in previous auctions, we adopt our proposal that each bidder be provided five activity rule waivers that may be used in any round during the course of the auction. Use of an activity rule waiver preserves the bidder's current bidding eligibility despite the bidder's activity in the current round being below the required minimum level. An activity rule waiver applies to an entire round of bidding and not to a particular license. We are satisfied that our practice of providing five waivers over the course of the auction provides a sufficient number of waivers and maximum flexibility to the bidders, while safeguarding the integrity of the auction.
76. The FCC automated auction system assumes that bidders with insufficient activity would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver (known as an “automatic waiver”) at the end of any round where a bidder's activity level is below the minimum required unless: (a) There are no activity rule waivers available; or (b) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the minimum requirements.
77. A bidder with insufficient activity that wants to reduce its bidding eligibility rather than use an activity rule waiver must affirmatively override the automatic waiver mechanism during the round by using the reduce eligibility function in the software. In this case, the bidder's eligibility is permanently reduced to bring the bidder into compliance with the activity rules as described in “Auction Stages” (
78. Finally, a bidder may proactively use an activity rule waiver as a means to keep the auction open without placing a bid. If a bidder submits a proactive waiver (using the proactive waiver function in the bidding software) during a round in which no bids are submitted, the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver invoked in a round in which there are no new valid bids or withdrawals will not keep the auction open.
79. In the
80. We conclude that the auction will be composed of three stages, which are each defined by an increasing activity rule. We will adopt our proposals for the activity rules. Here are the activity levels for each stage of the auction. The FCC reserves the discretion to further alter the activity percentages before and/or during the auction.
CAUTION: Since activity requirements increase in each auction stage, bidders must carefully check their current activity during the bidding period of the first round following a stage transition. This is especially critical for bidders that have standing high bids and do not plan to submit new bids. In past auctions, some bidders have inadvertently lost bidding eligibility or used an activity rule waiver because they did not re-verify their activity status at stage transitions. Bidders may check their activity against the required minimum activity level by using the bidding software's bidding module.
Because the foregoing procedures have proven successful in maintaining proper pace in previous auctions, we adopt them for Auction No. 33.
81. In the
82. We adopt our proposal. Thus, the auction will start in Stage One. Under the FCC's general guidelines the auction will start in Stage One and will advance to the next stage (
83. For Auction No. 33, the Bureau proposed to employ a simultaneous stopping rule. Under this rule, bidding will remain open on all licenses until bidding stops on every license. The auction will close for all licenses when one round passes during which no bidder submits a new acceptable bid on any license, applies a proactive waiver, or withdraws a previous high bid. After the first such round, bidding closes simultaneously on all licenses.
84. The Bureau also proposed a modified version of the simultaneous stopping rule. This modified version will close the auction for all licenses after the first round in which no bidder submits a proactive waiver, a withdrawal, or a new bid on any license on which it is not the standing high bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a license for which it is the standing high bidder will not keep the auction open under this modified stopping rule. The Bureau further sought comment on whether this modified stopping rule should be used unilaterally or only in stage three of the auction.
85. The Bureau further proposed retaining the discretion to keep an auction open even if no new acceptable bids or proactive waivers are submitted and no previous high bids are withdrawn in a round. In this event, the effect will be the same as if a bidder had submitted a proactive waiver. Thus, the activity rule will apply as usual, and a bidder with insufficient activity will either lose bidding eligibility or use an activity rule waiver (if it has any left).
86. In addition, we proposed that the Bureau reserve the right to declare that the auction will end after a specified number of additional rounds (“special stopping rule”). If the Bureau invokes this special stopping rule, it will accept bids in the final round(s) only for licenses on which the high bid increased in at least one of the preceding specified number of rounds. We proposed to exercise this option only in circumstances such as where the auction is proceeding very slowly, where there is minimal overall bidding activity or where it appears likely that the auction will not close within a reasonable period of time. Before exercising this option, the Bureau is likely to attempt to increase the pace of the auction by, for example, moving the auction into the next stage where bidders will be required to maintain a higher level of bidding activity), increasing the number of bidding rounds per day.
87. No comments were received on any of these issues therefore we adopt all of the proposals concerning the auction stopping rules. Auction No. 33 will begin under the simultaneous stopping rule, and the Bureau will retain the discretion to invoke the other versions of the stopping rule. Adoption of these rules, we believe, is most appropriate for Auction No. 33 because our experience in prior auctions demonstrates that the auction stopping rules balance the interests of administrative efficiency and maximum bidder participation. The substitutability between and among licenses in different geographic areas and the importance of preserving the ability of bidders to pursue backup strategies support the use of these stopping rules.
88. In the
89. Because this approach has proven effective in resolving exigent circumstances in previous auctions, we will adopt our proposed auction cancellation rules. By public notice or by announcement during the auction, the Bureau may delay, suspend or cancel the auction in the event of natural disaster, technical obstacle, evidence of an auction security breach, unlawful bidding activity, administrative or weather necessity, or for any other reason that affects the fair and competitive conduct of competitive bidding. In such cases, the Bureau, in its sole discretion, may elect to: resume the auction starting from the beginning of the current round; resume the auction starting from some previous round; or cancel the auction in its entirety. Network interruption may cause the Bureau to delay or suspend the auction. We emphasize that exercise of this authority is solely within the discretion of the Bureau, and its use is not intended to be a substitute for situations in which bidders may wish to apply their activity rule waivers.
90. The initial bidding schedule will be announced in the public notice listing the qualified bidders which is released approximately 10 days before the start of the auction. This public notice will be included with the registration mailings. The round structure for each bidding round contains a single bidding round followed by the release of the round results. Multiple bidding rounds may be conducted in a given day. Details regarding round results formats and locations will be included in the Qualified Bidder Public Notice.
91. The FCC has discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. The FCC may increase or decrease the amount of time for the bidding rounds and review periods, or the number of rounds per day, depending upon the bidding activity level and other factors.
92.
93. In the
94. In its comments, AMTA states that it is unlikely that its members will elect to participate unless the Commission significantly reduces the minimum opening bids proposed for the Guard Band spectrum. AMTA cites several factors in support of its position. First AMTA points out that the Guard Band spectrum will not become available until 2006 and that deadline may be further extended. Also AMTA asserts that the Guard Band spectrum is susceptible to interference from CMRS systems operating in the neighboring 30 MHz and that the economic utility of the Guard Band allocation will be affected by the technical requirements adopted to ensure interference protection for public safety systems. According to AMTA, these factors support a reduction to one-third or one-quarter of the proposed valuations in minimum opening bids in the Guard Band auction.
95. ITA claims that the Commission needs to revisit the amount set for the minimum opening bids in order to give consideration to the interference protection that must be provided public safety users. According to ITA, the protection requirements have the potential to erode the ability of the Guard Band Manager to fully maximize use of the spectrum. Further, according to ITA, the Guard Band Manager must also consider potential interference from adjacent band commercial users and avoid causing interference to incumbent broadcast operations. ITA argues that basing minimum bids upon traditional calculations, when there is the possibility that use of the spectrum cannot be fully maximized simply makes it that much more difficult to attract a wide pool of prospective Guard Band Managers. In view of these factors, ITA strongly encourages the Commission to reevaluate the methodology it used in setting the opening minimum bids. ITA did not state what minimum opening bid would be appropriate.
96. Mobex claims that the minimum opening bids: (i) Are cost prohibitive for most small businesses; (ii) contradict the requirements of the 1996 Telecommunications Act, specifically section 309(j); and (iii) will have a long term negative impact on the few remaining small businesses in the SMR industry, including Mobex. According to Mobex, the Commission's excessive minimum opening bids effectively preclude countless small businesses from realistically participating in the auction proceeding. Mobex cites to section 309(j) of the Telecommunications Act, which Mobex says requires the Commission to avoid excessive concentration of licenses by disseminating licenses among a wide variety of applicants, including small businesses. Mobex did not indicate what would be a more acceptable minimum opening bid.
97. Motorola argues that the proposed minimum opening bid amounts fail to account for: (i) The presence of incumbent broadcast stations; (ii) the possibility of interference from adjacent commercial licensees; and (iii) the barrier to entry these amounts present for small businesses and associations likely to be interested in the role of Guard Band Manager. Motorola further argues that the Commission did not explain the valuation expected for the Guard Band licenses as compared to the amount anticipated to be raised by the licenses available on the other 30 megahertz of spectrum allocated for commercial use in the 700 MHz band. Thus, Motorola says that it has no way of knowing what specific value the Bureau placed on the Guard Band spectrum. Motorola adds that because of TV incumbency issues, there are some markets where a Guard Band Manager may not be able to recognize a return on its license until December, 2006. Further, Motorola claims that the Guard Band spectrum faces potential interference from users of the remaining 30 megahertz of commercial spectrum in the 700 MHz band. Moreover, Motorola argues that the current values for upfront payments preclude small businesses and private land mobile frequency coordinators from participation in the auction. Motorola asserts that the bidding credits do not help because the credits are not applied to upfront payment amounts and the time constraints to raise the capital are extremely short due to the Congressional requirement to deposit the proceeds by September 30, 2000. Motorola recommends that the Bureau use the same formula that it used in setting the minimum opening bids for the 220 MHz spectrum in Auction No. 24 and that the Bureau maintain the 33% ratio, used in this proceeding, between minimum opening bids and upfront payments. Furthermore, Motorola claims that markets which are encumbered should be subject to a further reduction in minimum opening bids.
98. Reply comments were submitted by AMTA, ITA, Mobex , MRFAC, and PCIA.
99. On reply, AMTA notes that all of the initial comments filed in this proceeding took the position that the proposed minimum opening bids were unreasonably high. AMTA says that collectively the factors cited by commenters support a reduction in both the upfront payment and minimum opening bids in Auction No. 33. AMTA argues that those few parties that are able to participate in the auction will have to pass on unreasonably high acquisition costs to potential lessees, thus negatively impacting, if not eliminating, participation by small businesses. AMTA reiterates that the Commission should reduce the upfront payments and the minimum opening bids for the Guard Band spectrum to one-third or one-quarter of their current valuations to bring the valuations in line with the 220 MHz auction figures. AMTA concludes by stating that it supports Motorola's proposal to maintain a ratio of 33% between minimum opening bids and upfront payments and that the Commission should use Motorola's proposal as the absolute upper limits, with further reductions in markets that are encumbered.
100. In its reply comments, ITA also notes that all of those filing comments agreed that the Commission should revisit the amount of minimum opening bids. According to ITA, because the guard band manager must protect public safety users from interference, while avoiding interference to incumbent broadcast operations, it is much more difficult to attract a wide pool of prospective bidders. ITA states that it supports Motorola's proposal to apply the valuations used in the 220 MHz auction to set upfront payments and minimum opening bids.
101. In its reply comments, Mobex notes that all parties who submitted initial comments are in agreement that the Commission's proposed minimum opening bids would be cost prohibitive for many small businesses Mobex states that the Commission should reduce the valuation for the Guard Band, citing arguments of potential interference from users within the 30 megahertz block, the
102. MRFAC states that the minimum opening bid amounts are too high, considering that the spectrum in many of these markets will be encumbered until December, 2006, or even beyond. According to MRFAC, no rational investor would risk these kind of sums for an encumbered asset. MRFAC, therefore, urges that the Commission use minimum opening bids that are in line with those for the 220 MHz auction.
103. As in the case of the amount of upfront payments, the Bureau is persuaded by the comments and reply comments that it is appropriate to make a downward adjustment in the minimum opening bids. In doing so, we recognize concerns expressed with regard to when the spectrum may become available, interference and technical issues, and other factors cited in response to the
104. In the
105. We will adopt our proposal for a smoothing formula. The smoothing methodology is designed to vary the increment for a given license between a maximum and minimum value based on the bidding activity on that license. This methodology allows the increments to be tailored to the activity level of a license, decreasing the time it takes for active licenses to reach their final value. The formula used to calculate this increment is included as Attachment G.
106. We adopt our proposal of initial values for the maximum of 0.2, or 20 percent of the license value, and a minimum of 0.1, or 10 percent of the license value. The Bureau retains the discretion to change the minimum bid increment if it determines that circumstances so dictate. The Bureau will do so by announcement in the Automated Auction System. Under its discretion, the Bureau may also implement an absolute dollar floor for the bid increment to further facilitate a timely close of the auction. The Bureau may also use its discretion to adjust the minimum bid increment without prior notice if circumstances warrant. As an alternative approach, the Bureau may, in its discretion, adjust the minimum bid increment gradually over a number of rounds as opposed to single large changes in the minimum bid increment (
107. Each bid will be date-and time-stamped when it is entered into the FCC computer system. In the event of tie bids, the Commission will identify the high bidder on the basis of the order in which the Commission receives bids. The bidding software allows bidders to make multiple submissions in a round. As each bid is individually date-and time-stamped according to when it was submitted, bids submitted by a bidder earlier in a round will have an earlier date and time stamp than bids submitted later in a round.
108. During a bidding round, a bidder may submit bids for as many licenses as it wishes, subject to its eligibility, as well as withdraw high bids from previous bidding rounds, remove bids placed in the same bidding round, or permanently reduce eligibility. Bidders also have the option of making multiple submissions and withdrawals in each bidding round. If a bidder submits multiple bids for a single license in the same round, the system takes the last bid entered as that bidder's bid for the round, and the date-and time-stamp of that bid reflects the latest time the bid was submitted.
109. Please note that all bidding will take place remotely either through the automated bidding software or by telephonic bidding. (Telephonic bid assistants are required to use a script when entering bids placed by telephone. Telephonic bidders are therefore reminded to allow sufficient time to bid by placing their calls well in advance of the close of a round. Normally, four to five minutes are necessary to complete a bid submission.) There will be no on-site bidding during Auction No. 33.
110. A bidder's ability to bid on specific licenses in the first round of the auction is determined by two factors: (a) the licenses applied for on FCC Form 175; and (b) the upfront payment amount deposited. The bid submission screens will be tailored for each bidder to include only those licenses for which the bidder applied on its FCC Form 175. A bidder also has the option to further tailor its bid submission screens to call up specified groups of licenses.
111. The bidding software requires each bidder to login to the FCC auction system during the bidding round using the FCC account number, bidder identification number, and the confidential security codes provided in the registration materials. Bidders are strongly encouraged to download and print bid confirmations
112. The bid entry screen of the automated auction system software for Auction No. 33 allows bidders to place multiple increment bids, which will let bidders increase high bids from one to nine bid increments. A single bid increment is defined as the difference between the standing high bid and the minimum acceptable bid for a license. The bidding software will display the bid increment for each license.
113. To place a bid on a license, the bidder must increase the standing high bid by one to nine times the bid increment. This is done by entering a whole number between 1 and 9 in the bid increment multiplier (Bid Mult) field in the software. This value will determine the amount of the bid (Amount Bid) by multiplying the bid increment multiplier by the bid increment and adding the result to the high bid amount according to the following formula:
114. Thus, bidders may place a bid that exceeds the standing high bid by between one and nine times the bid increment. For example, to bid the minimum acceptable bid, which is equal to one bid increment, a bidder will enter “1” in the bid increment multiplier column and press submit.
115. For any license on which the FCC is designated as the high bidder (
116. In the
117. In previous auctions, we have detected bidder conduct that, arguably, may have constituted strategic bidding through the use of bid withdrawals. While we continue to recognize the important role that bid withdrawals play in an auction,
118. The Bureau will therefore limit the number of rounds in which bidders may place withdrawals to two rounds. These rounds will be at the bidder's discretion and there will be no limit on the number of bids that may be withdrawn in either of these rounds. Withdrawals during the auction will still be subject to the bid withdrawal payments specified in 47 CFR 1.2104(g). Bidders should note that abuse of the Commission's bid withdrawal procedures could result in the denial of the ability to bid on a market. If a high bid is withdrawn, the license will be offered in the next round at the second highest bid price, which may be less than, or equal to, in the case of tie bids, the amount of the withdrawn bid, without any bid increment. The Commission will serve as a “place holder” on the license until a new acceptable bid is submitted on that license.
119.
120. Once a round closes, a bidder may no longer remove a bid. However, in the next round, a bidder may withdraw standing high bids from previous rounds using the “withdraw bid” function (assuming that the bidder has not exhausted its withdrawal allowance). A high bidder that withdraws its standing high bid from a previous round during the auction is subject to the bid withdrawal payments specified in 47 CFR 1.2104(g). The procedure for withdrawing a bid and receiving a withdrawal confirmation is essentially the same as the bidding procedure described in “High Bids,” part IV.B.(iv).
121.
122. Bids placed during a round will not be published until the conclusion of that bidding period. After a round closes, the Commission will compile reports of all bids placed, bids withdrawn, current high bids, new minimum accepted bids, and bidder eligibility status (bidding eligibility and activity rule waivers), and post the reports for public access. Reports reflecting bidders' identities and bidder identification numbers for Auction No. 33 will be available before and during the auction. Thus, bidders will know in advance of this auction the identities of the bidders against which they are bidding.
123. The FCC will use auction announcements to announce items such as schedule changes and stage transitions. All FCC auction announcements will be available on the FCC remote electronic bidding system, as well as on the Internet.
124. As noted in part II.E., after the short-form filing deadline, applicants may make only minor changes to their FCC Form 175 applications. For example, permissible minor changes include deletion and addition of authorized bidders (to a maximum of three) and certain revisions to exhibits. Filers must make these changes on-line, and submit a letter summarizing these changes to: Amy Zoslov, Chief, Auctions and Industry Analysis Division, Wireless Telecommunications Bureau, Federal Communications Commission, 445 12th Street, S.W., Washington, D.C. 20554.
A separate copy of the letter should be mailed to Howard Davenport, Auctions and Industry Analysis Division), briefly summarizing the changes. Questions about other changes should be directed to Howard Davenport, Auctions and Industry Analysis Division at (202) 418-0660.
125. After bidding has ended, the Commission will issue a public notice declaring the auction closed, identifying the winning bids and bidders for each license, and listing bid withdrawal payments due.
126. Within ten business days after release of the auction closing public notice, each winning bidder must submit sufficient funds (in addition to its upfront payment) to bring its total amount of money on deposit with the Government to 20 percent of its net winning bids (actual bids less any applicable bidding credits).
127. Within ten business days after release of the auction closing public notice, winning bidders must file: (1) FCC Form 601 and all required exhibits electronically via the Universal Licensing System (“ULS”); and (2) FCC Form 602 manually pursuant to § 1.919 of the Commission's Rules. Winning bidders may file a single application for all markets won at auction. Winning bidders that are small businesses or very small businesses must include and exhibit demonstrating their eligibility for bidding credits.
128. Any high bidder that defaults or is disqualified after the close of the auction (
129. All applicants that submitted upfront payments but were not winning bidders for a 700 MHz guard band license may be entitled to a refund of their remaining upfront payment balance after the conclusion of the auction. No refund will be made unless there are excess funds on deposit from that applicant after any applicable bid withdrawal payments have been paid.
130. Bidders that drop out of the auction completely may be eligible for a refund of their upfront payments before the close of the auction. However, bidders that reduce their eligibility and remain in the auction are not eligible for partial refunds of upfront payments until the close of the auction. Qualified bidders that have exhausted all of their activity rule waivers, have no remaining bidding eligibility, and have not withdrawn a high bid during the auction must submit a refund request which includes wire transfer instructions and a Taxpayer Identification Number (“TIN”), to: Federal Communications Commission, Financial Operations Center, Auctions Accounting Group, Shirley Hanberry, 445 12th Street, S.W., Room 1-A824 Washington, DC 20554.
131. Bidders are encouraged to file their refund information electronically using the Refund Information portion of the FCC Form 175, but bidders can also fax their request to the Auctions Accounting Group at (202) 418-2843. Once the request has been approved, a refund will be sent to the party identified in the refund information.
Refund processing generally takes up to two weeks to complete. Bidders with questions about refunds should contact Michelle Bennett or Gail Glasser at (202) 418-1995.
Federal Communications Commission.
Notice.
This document announces new dates relevant to the upcoming auction of licenses in the 747-762 and 77-792 MHz bands (Auction No. 31) scheduled to begin June 7, 2000.
Auction No. 31 will begin June 7, 2000.
Howard Davenport, Auctions and Industry Analysis Division, at (202) 418-0660 or Kathy Garland, Auctions Operations at (717) 338-2801.
This is a summary of a Public Notice released April 12, 2000. The complete text of the public notice, including corrected Attachment J (Incumbent Television Licenses on Channels 59-68) is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street, SW, Washington, DC 20554. It may also be purchased from the Commission's copy contractor, International Transcription Services, Inc. (ITS, Inc.), 1231 20th Street, NW, Washington, DC 20036, (202) 857-3800. It is also available on the Commission's web site at
1. The upcoming auction of licenses in the 747-762 and 777-792 MHz bands has been postponed until June 7, 2000.
2. The Bureau also makes a minor correction to Attachment J of an earlier public notice.
3. The Commission delegated to the Bureau the authority to suspend payment deadlines and require that winning bidders on
4. Finally, in light of upcoming auctions, the Bureau also reminds participants that under the anti-collusion rules, after the short-form filing deadline, applicants may not discuss the substance of their bids or bidding strategies with other bidders that have applied to bid in the same geographic license areas, with the exception of those with whom they have entered into agreements and identified on the short-form application.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:00 a.m. on Tuesday, April 18, 2000, the Federal Deposit Insurance Corporation's Board of Directors will meet in closed session, pursuant to sections 552b(c)(2), (c)(6), (c)(8), (c)(9)(A)(ii), (c)(9)(B), and (c)(10), of Title 5, United States Code, to consider matters relating to the Corporation's supervisory, corporate, and personnel activities.
The meeting will be held in the Board Room on the sixth floor of the FDIC Building located at 550—17th Street, NW, Washington, DC.
Requests for further information concerning the meeting may be directed to Mr. Robert E. Feldman, Executive Secretary of the Corporation, at (202) 898-6757.
Federal Election Commission.
The following items were added to the agenda:
The following item was withdrawn from the agenda:
999 E Street, NW, Washington, DC.
This meeting will be closed to the public.
Compliance matters pursuant to 2 U.S.C. § 437g
999 E Street, NW, Washington, DC (Ninth Floor).
This meeting will be open to the public.
Correction and Approval of Minutes
Mr. Ron Harris, Press Officer, Telephone: (202) 694-1220.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire a bank or bank
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than May 4, 2000.
A. Federal Reserve Bank of Minneapolis (JoAnne F. Lewellen, Assistant Vice President), 90 Hennepin Avenue, Minneapolis, Minnesota 55480-0291:
1. The Emison Investments Limited Partnership, Eden Prairie, Minnesota; to acquire voting shares of Community Bank Group, Inc., Eden Prairie, Minnesota; and thereby indirectly acquire voting shares of Community Bank Winsted, Winsted, Minnesota, and Community Bank Minnesota Valley, Jordan, Minnesota.
B. Federal Reserve Bank of Kansas City (D. Michael Manies, Assistant Vice President), 925 Grand Avenue, Kansas City, Missouri 64198-0001:
1. Randy Allan Deason, Chouteau, Oklahoma; to acquire voting shares of BOC Banshares, Inc., Chouteau, Oklahoma, and thereby indirectly acquire voting shares of Bank of Commerce, Chouteau, Oklahoma.
C. Federal Reserve Bank of Dallas (W. Arthur Tribble, Vice President), 2200 North Pearl Street, Dallas, Texas 75201-2272:
1. Robert B. Mathieu, Delhi, Louisiana; to acquire additional voting shares of Delhi Bancshares, Inc., Delhi, Louisiana, and thereby indirectly acquire additional voting shares of Guaranty Bank & Trust Company of Delhi, Delhi, Louisiana.
Board of Governors of the Federal Reserve System, April 14, 2000.
This notice corrects a notice (FR Doc. 00-9055) published on page 19766 of the issue for Wednesday, April 12, 2000.
Under the Federal Reserve Bank of New York heading, the entry for The Dai-Ichi Kangyo Fuji Trust & Banking Co., Ltd., Tokyo, Japan, is revised to read as follows:
A. Federal Reserve Bank of New York (Betsy Buttrill White, Senior Vice President), 33 Liberty Street, New York, New York 10045-0001:
1. The Dai-Ichi Kangyo Fuji Trust & Banking Co., Ltd., Tokyo, Japan; to become a bank holding company through the ownership of 100 percent of, and by the conversion of its U.S. subsidiary, DKF Trust Company (USA), New York, New York, an insured New York state-chartered trust company, into a bank, as defined by the BHC Act.
Comments on this application must be received by May 5, 2000.
Board of Governors of the Federal Reserve System, April 14, 2000.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The application also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than May 15, 2000.
A. Federal Reserve Bank of New York (Betsy Buttrill White, Senior Vice President), 33 Liberty Street, New York, New York 10045-0001:
1. Troy Financial Corporation, Troy, New York; to acquire 100 percent of the voting shares of The Troy Commercial Bank, Troy, New York.
B. Federal Reserve Bank of Richmond (A. Linwood Gill, III, Vice President), 701 East Byrd Street, Richmond, Virginia 23261-4528:
1. Carolina First Corporation, Greenville, South Carolina; to merge with Anchor Financial Corporation, Myrtle Beach, South Carolina, and thereby indirectly acquire The Anchor Bank, Myrtle Beach, South Carolina; and shares of RHBT Financial Corporation, Rock Hill, South Carolina; and Rock Hill Bank & Trust, Rock Hill, South Carolina.
2. First Bancorp, Troy, North Carolina; to merge with First Savings Bancorp, Inc., Southern Pines, North Carolina, and thereby indirectly acquire First Savings Bank of Moore County, Inc., SSB, Southern Pines, North Carolina.
C. Federal Reserve Bank of Chicago (Phillip Jackson, Applications Officer), 230 South LaSalle Street, Chicago, Illinois 60690-1414:
1. Firstbank Corporation, Alma, Michigan; to acquire 100 percent of the voting shares of Firstbank-St. Johns (in organization), St. Johns, Michigan.
D. Federal Reserve Bank of St. Louis (Randall C. Sumner, Vice President), 411 Locust Street, St. Louis, Missouri 63166-2034:
1. G.A.C., Inc., St. Louis, Missouri; to become a bank holding company by acquiring 100 percent of the voting shares of Gateway National Bank of St. Louis, St. Louis, Missouri.
E. Federal Reserve Bank of Kansas City (D. Michael Manies, Assistant Vice President), 925 Grand Avenue, Kansas City, Missouri 64198-0001:
1. First Liberty Capital Corporation ESOP, Hugo, Colorado; to become a bank holding company by acquiring 25 percent of the voting shares of First Liberty Capital Corporation, Hugo, Colorado, and thereby indirectly acquire First National Bank of Hugo, Hugo, Colorado.
F. Federal Reserve Bank of San Francisco (Maria Villanueva, Consumer Regulation Group), 101 Market Street, San Francisco, California 94105-1579:
1. Frontier Financial Corporation, Everett, Washington; to acquire up to 100 percent of the voting shares of Liberty Bay Financial Corporation,
Board of Governors of the Federal Reserve System, April 14, 2000.
In compliance with the requirement of Section 3506 (c) (2) (A) of the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) is providing an opportunity for public comment on proposed data collection projects. To request more information on the proposed projects or to obtain a copy of the data collection plans and instruments, call the CDC/ATSDR Reports Clearance Officer at (404) 639-7090.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques for other forms of information technology. Send comments to CDC/ATSDR Reports Clearance Officer, 1600 Clifton Road, MS-D24, Atlanta, GA 30333. Written comments should be received within 60 days of this notice.
National Survey of Laboratory Practices for Selected Coagulation Tests in Hospital Laboratories—New—As part of the continuing effort to support public health objectives of treatment, disease prevention and surveillance programs, the Public Health Practice Program Office (PHPPO), Division of Laboratory Systems seeks to collect information on coagulation testing practices among U.S. hospital laboratories. The purpose of this project is to define the state of testing practices in a random sample of up to 800 U.S. hospital laboratories for selected coagulation analytes by conducting a questionnaire survey of these laboratories. The objectives of this survey are to collect data to assess the variability of selected analytical and non-analytical variables, such as normal ranges, used for selected coagulation tests. There has not been a systematic and nationally based survey of coagulation testing practices among U.S. hospital laboratories. Such a surveillance is needed due to the impact that coagulation testing practices can have on the diagnosis and management of coagulation disorders.
There is ample evidence of variability in coagulation testing practices based on published literature corresponding to experiences of individual institutions that deal with analytical (e.g., impact of instrument and kit reagents on laboratory results) as well as pre-analytical (such as specimen treatment) and post-analytical (such as results presentation) issues. However, there has not been a systematic survey of national hospital laboratories that has documented the nature and extent of such variability for selected coagulation tests. Preliminary observations document substantial inter-institutional variability in coagulation testing practices, with likely effect on patient outcome.
This study will explore current practices for one or more selected coagulation tests to document the extent and nature of variability in the testing processes. It is anticipated that information from this study will be used for several purposes. First, results from this project may be used in a future study in order to surmise the potential impact of various testing practices on patient outcomes. A second anticipated use of this study's results is to implement targeted laboratory improvement efforts. Finally, this study may form the basis for a future study to assess the extent and nature of problems in diagnosis and treatment of patients caused by inaccurate laboratory results. Because hypo- and hypercoagulability disorders are prevalent in the U.S. and they are defined to a great extent by laboratory tests, a well designed laboratory practice survey is expected to be of great public health significance for the nation.
We plan to sample up to 800 laboratories that perform selected coagulation tests. The time required to complete a survey will be approximately 0.5 hours. We anticipate that, of the respondents, approximately 80 will be Coagulation Laboratory Directors (physicians) and approximately 720 will be Coagulation Laboratory Supervisors. The total burden hours to complete the survey is estimated to be 400. Based on hourly wage estimates, the cost to respondents could be approximately $9,000. Because we expect the Laboratory Directors and Supervisors to complete the survey during their usual working hours. We anticipate that there will be no actual cost to the respondents.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is amending the conditions for marketing an effective adult parenteral multivitamin drug product that published in the
Supplements to approved new drug applications (NDA's) and abbreviated new drug applications (ANDA's) are due on or before June 19, 2000.
Communication in response to this notice should be identified with the reference number DESI 2847 and directed to the attention of the appropriate office named below.
Supplements to full NDA's (identify with NDA number): Division of Metabolic and Endocrine Drug Products (HFD-510), Center for Drug Evaluation and Research, Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857.
Original ANDA's: Office of Generic Drugs (HFD-600), Center for Drug Evaluation and Research, Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855.
Requests for opinion of the applicability of this notice to a specific product: Division of Prescription Drug Compliance and Surveillance (HFD-330), Food and Drug Administration, 7500 Standish Pl., Rockville, MD 20855.
Mary E. Catchings, Center for Drug Evaluation and Research (HFD-7), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-594-2041.
In a notice published in the
On August 21, 1985, FDA's Division of Metabolic and Endocrine Drug Products and the AMA's Division of Personal and Public Health Policy sponsored a public workshop on “Multivitamin Preparations for Parenteral Use.” At the workshop, additional data from clinical testing of the 1975 AMA formulation and a variety of other data were presented and discussed in light of available information on parenteral vitamin therapy. After examining the data, the AMA-FDA workshop committee recommended that the dosage of vitamins B
Accordingly, this notice amends portions of the section
Paragraph 1(a)(i) is revised as follows:
1.
2.
(a) The label must bear the statement “Rx only.”
(b)
The physician should not await the development of clinical signs of vitamin deficiency before initiating vitamin therapy.
Patients with multiple vitamin deficiencies or with markedly increased requirements may be given multiples of the daily dosage for 2 or more days, as indicated by the clinical status. Clinical testing indicates that some patients do not maintain adequate levels of certain vitamins when this formulation in recommended amounts is the sole source of vitamins.
(c)
Known hypersensitivity to any of the vitamins or excipients in this product or a preexisting hypervitaminosis. Allergic reaction has been known to occur following intravenous administration of thiamine and vitamin K. The formulation is contraindicated prior to blood sampling for detection of megaloblastic anemia, as the folic acid and the cyanocobalamin in the vitamin solution can mask serum deficits.
In addition, the following sections required by 21 CFR 201.57 should read as follows:
1.
Caution should be exercised when administering this multivitamin formulation to patients on warfarin sodium-type anticoagulant therapy. In such patients, periodic monitoring of prothrombin time is essential in determining the appropriate dosage of anticoagulant therapy.
2.
Supplements to approved NDA's or ANDA's providing for appropriate revision of the labeling of drug products affected by this notice should be submitted on or before June 19, 2000.
This notice is issued under the Federal Food, Drug, and Cosmetic Act (secs. 201(n), 502, 505, 52 Stat. 1041, 1050-1053, as amended (21 U.S.C. 321(n), 352, 355)) and under the authority delegated to the Director of the Center for Drug Evaluation and Research (21 CFR 5.70).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA regrets that it was unable to publish this notice 15 days prior to the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee meeting. Because the agency believes there is some urgency to bring these issues to public discussion and qualified members of the General and Plastic Surgery Devices Panel of the Medical Devices Advisory Committee were available at this time, the Commissioner of Food and Drugs concluded that it was in the public interest to hold this meeting even if there was not sufficient time for the customary 15-day public notice.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a list of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (301) 443-7978.
(New)—SAMHSA's Center for Substance Abuse Prevention (CSAP) has awarded contracts to three States (Cohort V) to collect data to assess the nature and extent of substance abuse prevention services needs. The data collection by these States will bring to 30 (Cohorts I-V) the number of States that have implemented a family of prevention needs assessment studies, and will constitute the third cohort to apply the core set of measures, instruments, and methodologies developed and standardized under prior State needs assessment State contracts.
Data will be collected in school surveys and community resource assessments (CRA). The information collected in this project will be combined with existing information from other sources; States may use multiple approaches to assess statewide and substate distributions of risk and protective factors for substance use, of prevention resources, and of prevention services needs. These needs assessment studies will permit cross-State comparison of risk and protection variables to assist State services planning and allocation of State Block Grant funds, and to assist Federal response to the Government Performance and Results Act (GPRA). The estimated annualized burden for the three-year project is shown below.
Written comments and recommendations concerning the proposed information collection should be sent within 30 days of this notice to: Clarissa Rodrigues-Coelho, Human Resources and Housing Branch, Office of Management and Budget, New Executive Office Building, Room 10235, Washington, D.C. 20503.
Office of the Chief Information Officer, HUD.
Notice.
The proposed information collection requirement described below has been submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB approval number (2502-0447) and should be sent to: Joseph F. Lackey, Jr., OMB Desk Officer, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503.
Wayne Eddins, Reports Management Officer, Q, Department of Housing and Urban Development, 451 Seventh Street, Southwest, Washington, DC 20410; e-mail Wayne_Eddins@HUD.gov; telephone (202) 708-2374. This is not a toll-free number. Copies of the proposed forms and other available documents submitted to OMB may be obtained from Mr. Eddins.
The Department has submitted the proposal for the collection of information, as described below, to OMB for review, as required by the Paperwork Reduction Act (44 U.S.C. Chapter 35). The Notice lists the following information (1) The title of the information collection proposal; (2) the office of the agency to collect the information; (3) the OMB approval number, if applicable; (4) the description of the need for the information and its proposed use; (5) the agency form number, if applicable; (6) what members of the public will be affected by the proposal; (7) how frequently information submissions will be required; (8) an estimate of the total number of hours needed to prepare the information submission, including number of respondents, frequency of response, and hours of response; (9) whether the proposal is new, an extension, reinstatement, or revision of an information collection requirement; and (10) the name and telephone number of an agency official familiar with the proposal and of the OMB Desk Officer for the Department.
This Notice also lists the following information:
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. 35, as amended.
Fish and Wildlife Service, Interior.
Notice of receipt of permit application and availability of Habitat Conservation Plan and Environmental Assessment.
This notice advises the public that Magic Carpet Woods Association (Applicant) has applied to the Fish and Wildlife Service (Service) for an incidental take permit pursuant to section 10(a)(1)(B) of the Endangered Species Act of 1973, as amended (Act). This notice is provided pursuant to section 10(c) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531,
The Service also announces the availability of a Habitat Conservation Plan (HCP), draft Implementing Agreement, and Draft Environmental Assessment (EA) for the incidental take application. Copies of the application package may be obtained by making a request to the Regional Office address below. Requests must be submitted in writing to be processed. This notice is provided pursuant to Section 10(c) of the Act and National Environmental Policy Act Regulations (40 CFR 1506.6).
Written comments on the permit application and HCP should be received on or before May 22, 2000.
Individuals wishing copies of the permit application, HCP, Implementing Agreement, or Draft EA, may contact the Service's Regional Office, Fort Snelling, Minnesota. The documents will also be available for public inspection, by appointment, during normal business hours at the Regional Office or the East Lansing Field Office. Written data or comments concerning the application, EA, or HCP should be submitted to the Regional Office. Please reference permit under TE-025433 in such comments.
Pete Fasbender, Regional HCP Coordinator, U.S. Fish and Wildlife Service, Fort Snelling, Minnesota, telephone 612/713-5343.
Under Section 9 of the Act and applicable federal regulations, the “taking” of a species listed as endangered or threatened is prohibited. However, the Service, under limited circumstances, may issue permits to “take” listed species, provided such take is incidental to, and not the purpose of, an otherwise lawful activity. Regulations governing permits for endangered species are promulgated in 50 CFR 17.22 Regulations governing permits for threatened species are promulgated in 50 CFR 17.32.
Piping plovers are sensitive to human disturbance and the effects of human activity throughout the Great Lakes and Atlantic Coast breeding range lead to its listing as an endangered species in 1985. Human activity remains the primary threat to the species survival in the Great Lakes region. The proposed residential development consists of 13 single family residences located within the forested portion of a 91 acre tract at the north end of Kehl Road in Leelanau Township, Leelanau County, Michigan (SW
The open dune portion of the Applicant's property contains several hundred individual Pitcher's thistle (
Fish and Wildlife Service, Interior.
Notice.
The Nature Conservancy, Virginia Chapter, (Applicant) has applied to the U.S. Fish and Wildlife Service (Service) for an enhancement of survival permit (ESP) pursuant to Section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (Act). The proposed ESP would authorize the incidental take of a federally endangered species, the red-cockaded woodpecker,
The Service also announces the availability of a draft environmental assessment (EA) and safe harbor plan for the ESP application. Copies of the EA and/or safe harbor plan may be obtained by making a request to the Northeast Regional Office (see
Written comments on the permit application, EA/FONSI, and safe harbor plan should be sent to the Service's Northeast Regional Office (see
Persons wishing to review the application, safe harbor plan, and
Ms. Diane Lynch, Regional Permit Coordinator, (see
The RCW is a territorial, nonmigratory breeding bird species. RCWs live in social units called groups which generally consist of a breeding pair, the current year's offspring, and one or more helpers (normally adult male offspring of the breeding pair from previous years). Groups maintain year-round territories near their roost and nest trees. The RCW is unique among the North American woodpeckers in that it is the only woodpecker that excavates its roost and nest cavities in living pine trees. Each group member has its own cavity, although there may be multiple cavities in a single pine tree. The aggregate of cavity trees is called a cluster. RCWs forage for insects almost exclusively on pine trees and they generally prefer pines greater than 10 inches diameter at breast height. Foraging habitat is contiguous with the cluster. The number of acres required to supply adequate foraging habitat depends on the quantity and quality of the pine stems available.
The RCW is endemic to the pine forests of the Southeastern United States and was once widely distributed across 16 states. The species evolved in a fire-maintained mature pine forest ecosystem. The RCW has declined primarily due to the conversion of old stand pine forests to young pine plantations, agricultural fields, and residential and commercial developments, and to hardwood encroachment in existing pine forests due to fire suppression. The species is still widely distributed (presently occurs in 13 southeastern States), but remaining populations are highly fragmented and isolated. Presently, the largest known populations occur on federally owned lands such as military installations and national forests.
In Virginia, the majority of the known remaining RCWs (16 birds as of December, 1999), including all of the known breeding pairs, occur on The Nature Conservancy's Piney Grove Preserve in Sussex County. This is the northern most population of RCWs remaining. The Virginia Department of Game and Inland Fisheries, the U.S. Fish and Wildlife Service, and The Nature Conservancy concur that the future of the RCW in Virginia rests on management of the Piney Grove Preserve and the surrounding private lands.
The Service and several other agencies/organizations are working cooperatively to further develop an overall conservation strategy for the RCW population and the ecosystem upon which it depends. One component of this strategy is to expand the safe harbor program to other states and regions within the RCW's historic range. The Service recognizes that landowners presently have no legal or economic incentive to undertake proactive management actions, such as hardwood midstory removal, prescribed burning, or protecting future cavity trees, that will benefit and help recover the RCW. Indeed, landowners actually have a disincentive to undertake these actions because of land use limitations that could result if their management activities attract RCWs. However, some Virginia private landowners near the Piney Grove Preserve may be willing to take or permit actions that would benefit the RCW on their property if the possibility of future land use limitations could be reduced or eliminated.
Thus, the Applicant is proposing this Safe Harbor program, which is designed to encourage voluntary RCW habitat restoration or enhancement activities by relieving a landowner who enters into a cooperative agreement with the Service from any additional responsibility under the Act beyond that which exists at the time he or she enters into the agreement;
The EA considers the environmental consequences of two alternatives, including the preferred alternative—to implement the Safe Harbor program. The likely effects of the no-action alternative are the continued lack of management to benefit the RCW in many of the natural pine stands that remain near the Piney Grove Preserve, and the continued absence of RCWs on those lands. The proposed action alternative is the issuance of an enhancement of survival permit and implementation of the Safe Harbor program. The Service believes that the Safe Harbor will benefit the RCW in Virginia by providing additional habitat for future growth of the population.
The Service has made a preliminary determination that the issuance of the ESP is not a major Federal action significantly effecting the quality of the human environment within the meaning of Section 102(2)(C) of NEPA. This preliminary information may be revised due to public comment received in response to this notice and is based on information contained in the EA and safe harbor plan. An appropriate excerpt from the FONSI reflecting the Service's finding on the application is provided below:
Based on the analysis conducted by the Service, it has been determined that:
1. Issuance of an ESP would not have significant effects on the human environment in the project area.
2. Implementation of the safe harbor plan will result in a net conservation benefit for the RCW.
3. The proposed take will not appreciably reduce the likelihood of
4. The indirect impacts that may result from issuance of the ESP are addressed by other regulations and statutes under the jurisdiction of other government entities. The validity of the Service's ESP is contingent upon the Applicant's compliance with the terms of the permit and all other laws and regulations under the control of State, local, and other Federal governmental entities.
The Service will also evaluate whether the issuance of a Section 10(a)(1)(A) ESP complies with Section 7 of the Act by conducting an intra-Service Section 7 consultation. The results of the biological opinion, in combination with the above findings, will be used in the final analysis to determine whether or not to issue the ESP.
Fish and Wildlife Service, Interior.
Notice.
The Rhinoceros and Tiger Conservation Act of 1994 was amended in 1998 to prohibit the sale, importation, or exportation of products labeled or advertised as containing rhinoceros or tiger products, and to carry out an associated educational outreach program. Prior to developing and carrying out such an educational outreach effort, we seek input and guidance from the public on the needed components for such an effort. To guide this effort, we have developed a draft interim educational plan with the goals of a long-term plan clearly identified but action items developed only for a short time frame until we can meet with the public and solicit input for the development of future action items.
With this notice, we request your comments and input on the draft Educational Outreach Program Interim Action Plan and seek partnerships to carry out the final plan, and we announce two public meetings to discuss the draft Educational Outreach Program Interim Action Plan and suggested modifications for future activities under a long-term plan.
(1) Draft Educational Outreach Program Interim Action Plan review: If you wish to view a copy of the draft Educational Outreach Program Interim Action Plan, please submit a written request for a copy of this document to the address listed below within 30 days of the date of publication of this notice. We will consider written comments and suggestions you submit regarding the Educational Outreach Program Interim Action Plan if we receive them by June 19, 2000.
(2) Public Meetings: You are invited to participate in one or both of our Educational Outreach Action Plan public meetings, one to be held on the east coast on May 18, 2000, 1:30-4:30 p.m., and the second to be held on the west coast on June 4, 2000, 1:30-4:30 p.m.
(1) Educational Outreach Program Interim Action Plan review: Office of Management Authority; U.S. Fish and Wildlife Service; 4401 North Fairfax Drive; Room 700; Arlington, VA 22203. Comments on the draft Educational Outreach Program Interim Action Plan may be submitted by any one of several methods. You may mail comments to the above address. You may also comment via E-mail to r9oma_cites@fws.gov. Please submit E-mail comments as an ASCII file, avoiding the use of special characters and any form of encryption. Please also include “Attn: Rhinoceros and Tiger Conservation Act of 1998” and your name and return address in your E-mail message. If you do not receive a confirmation from the system that we have received your E-mail message, contact us directly at the telephone number listed below. Finally, you may hand-deliver comments to the above address.
Comments and materials received will be available for public inspection, by appointment, from 8 a.m. to 4 p.m., Monday through Friday, at the above address.
(2) Public Meetings: The two public meetings will be held (see
Directions to either location can be obtained by contacting the Office of Management Authority (see
Teiko Saito, Chief, Office of Management Authority, Branch of CITES Operations, phone 703/358-2095, fax 703/358-2298, E-mail: r9oma_cites@fws.gov.
Congress passed the Rhinoceros and Tiger Conservation Act of 1994 (the Act) to assist in the conservation of rhinoceroses and tigers by supporting critical conservation programs in nations whose activities directly or indirectly affect rhino and tiger populations. The Act also established the Rhinoceros and Tiger Conservation Fund to provide financial resources for on-the-ground conservation programs and to promote education to increase public awareness of the plight of rhinos and tigers in the wild.
Rhinoceroses and tigers are among the most critically endangered large mammals in the world and are the focus of extensive global conservation efforts aimed at halting their decline. Consumer demand for and trade in the parts and products of these species supply luxury markets as well as markets for cultural and medicinal needs. One of the most complex and far-reaching of these demands is for use in traditional medicines.
Commercial international trade of raw rhino horn and tiger bone and their derivative products is prohibited by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), in addition to domestic legislation in the United States and China. The Act of 1994 was amended and strengthened by the Rhinoceros and Tiger Conservation Act of 1998, which (a) outlined specific trade prohibitions of rhino and tiger products and (b) mandated a national educational outreach program.
(a) The Act of 1998 “prohibits the sale, importation, exportation, or attempts to sell, import, or export, any product, item, or substance intended for human consumption or application, containing, or labeled or advertised as containing, any substance derived from any species of rhinoceros or tiger.”
(b) The amended Act also requires that the Secretary of the Interior develop and carry out an educational outreach program in the United States for the conservation of rhinoceros and tiger species. The contents of the Educational Outreach Program Action Plan will include:
(1) Guidelines for the National Educational Outreach Program;
(2) Active pursuit of opinions from organizations and people actively involved in the traditional medicines trade;
(3) Aggressive advertising of the laws protecting rhinoceros and tiger species, focusing on the laws prohibiting trade in products containing, or labeled or advertised as containing, their parts or products;
(4) Widespread distribution of information regarding the negative effects of the toxics and heavy metals found in some packaged traditional medicines; and
(5) Information on the status of rhinoceros and tiger species populations and the reasons for protecting the species.
Through this
We hope to work closely with the nonprofit conservation community and traditional medicine communities as well as the public in creating a strong outreach plan and carrying out the contents of that plan. We recognize that a number of groups are already actively involved in educating the public about rhinoceros and tiger products and the conservation of these species, and we wish to integrate our efforts with theirs. Partnerships hold the key to successfully informing the public about the conservation needs of rhinoceros and tiger species. We are looking to identify partner organizations that we can work with in carrying out the long-term objectives and actions of a national outreach plan. The purpose of the two scheduled public meetings is to solicit additional public input into the completion of a final Educational Outreach Program Action Plan, as well as to serve as a starting point for future interactions with communities that have historically used products containing rhino horn and tiger part derivatives. After receiving public input, we will develop a long-term national educational outreach plan and program that will rely strongly on public involvement in its future implementation.
This notice was prepared by Cynthia Perera and Anne St. John, Office of Management Authority, under the authority of The Rhinoceros and Tiger Conservation Act of 1998 (16 U.S.C. 5301).
Amendment to the February 1, 2000 Notice of Intent to Prepare an Environmental Impact Statement for obtaining water and/or water rights from willing sellers in the Walker River Basin for the purposes of protecting the Walker Lake ecosystem from degradation resulting from increasing total dissolved solids (TDS) in the lake; possible use in a settlement of the United States' water rights claims in the Walker River Basin should a settlement be negotiated; and to assist in recovery of the threatened Lahontan cutthroat trout in the Walker River Basin.
Bureau of Land Management, Carson City Field Office, 5665 Morgan Mill Road, Carson City, NV 89701.
Amendment to the February 1, 2000 notice of intent to prepare an environmental impact statement for obtaining water and/or water rights from willing sellers in the Walker River Basin, notice of scoping period. The initial public scoping period will be extended to July 31, 2000. The public review and comment period on the draft EIS will be increased to 75 days.
The Bureau of Land Management (BLM), Carson City Field Office, in cooperation with the Bureau of Indian Affairs (BIA), Phoenix Area Office, The Bureau of Reclamation (BOR), Lahontan Basin Area Office and the U.S. Fish and Wildlife Service (FWS), Nevada Fish and Wildlife Office, will extend the initial public scoping period until July 31, 2000 and increase the time allowed for public review and comment on the draft EIS to 75 days. This extended initial public scoping period is necessary for the following reasons: (1) To allow potential cooperating agencies to make decisions in regards to their status in this project and participate early in the NEPA process, (2) the complex issues, to be investigated in this EIS, require additional time for consideration and refinement, and (3) additional time is needed to develop alternatives for consideration in the EIS. The increased time allowed for public review and comment on the draft EIS is necessary to allow local governments adequate time for review of the document and consideration of these matters at regularly scheduled meeting of the County Board of Commissioners.
The initial public scoping period is extended until July 31, 2000.
A Draft EIS (DEIS) is expected to be completed by November 24, 2000 and made available for public review and comment. The public review and comment period on the DEIS will be 75 days from the date the Notice of Availability (NOA) is published in the
For additional information, write to the Field Manager of the Carson City Field Office at the address listed in the agency section of this notice, call or email Walt Devaurs (BLM Team Leader) at (775) 885-6150, wdevaurs@nv.blm.gov or
The proposed EIS schedule is as follows:
Bureau of Land Management, Interior.
Notice of Meeting.
In accordance with the Federal Advisory Committee Act of 1972 (FACA), 5 U.S.C. Appendix, notice is hereby given that the next meeting of the Front Range Resource Advisory Council (Colorado) will be held on May 11, 2000 in Canon City, Colorado.
The meeting is scheduled to begin at 9:15 a.m. at the Holy Cross Abbey Community Center, 2951 E. Highway 50, Canon City, Colorado. Topics will include a discussion on the Mining Regulations and update on the Recreation Guidelines for Colorado.
All Resource Advisory Council meetings are open to the public. Interested persons may make oral statements to the Council at 9:30 a.m. or written statements may be submitted for the Council's consideration. The Center Manager may limit the length of oral presentations depending on the number of people wishing to speak.
The meeting is scheduled for Thursday, May 11, 2000, from 9:15 a.m. to 4 p.m.
Bureau of Land Management (BLM), Front Range Center, 3170 East Main Street, Canon City, Colorado 81212.
Ken Smith at (719) 269-8553.
Summary minutes for the Council meeting will be maintained in the Front Range Center and will be available for public inspection and reproduction during regular business hours within thirty (30) days following the meeting.
Bureau of Land Management, Upper Columbia—Salmon Clearwater District, Idaho.
Notice of Resource Advisory Council Meeting.
In accordance with the Federal Land Policy and Management Act and the Federal Advisory Committee Act of 1972 (FACA), 5 U.S.C. Appendix, the Bureau of Land Management (BLM) announces the meeting of the Upper Columbia—Salmon Clearwater District Resource Advisory Council (RAC) on Tuesday, May 9, 2000 at the District Office, 1808 N. Third St., Coeur d'Alene, Idaho. A telephone patch will be available at the Salmon-Challis National Forest Headquarters office located on U.S. 93, one mile south of Salmon, Idaho.
Agenda items include an update from the Recreation Sub-Group on its findings concerning the potential use of funds collected through the Salmon-Challis National Forest's Salmon River fee demonstration project and identification of future issues for RAC consideration. The meeting will begin at 10:00 a.m. (PDT). The public may address the Council during the public comment period from 10:20 a.m.-10:50 a.m. (PDT). Those wishing to address the Council should contact Ted Graf, RAC Coordinator, at (208) 769-5004 at least 24 hours prior to the meeting.
All Resource Advisory Council meetings are open to the public. Interested persons may make oral statements to the Council, or written statements may be submitted for the Council's consideration. Depending on the number of persons wishing to make oral statements, a per-person time limit may be established by the Designated Federal Official.
The Council's responsibilities include providing recommendations concerning long-range planning and establishing resource management priorities.
Ted Graf (208)769-5004.
Bureau of Land Management, Interior.
Arizona Resource Advisory Council Meeting notice.
This notice announces a meeting and tour of the Arizona Resource Advisory Council (RAC). The meeting will be held on May 11, 2000, at the Sierra Suites Hotel, 391 E. Fry Blvd., located in Sierra Vista, Arizona. It will begin at 9:00 a.m. and will conclude at approximately 4:00 p.m. The agenda items to be covered include the review of the March 31, 2000, meeting minutes; BLM State Director's Update on legislation, regulations, and statewide planning efforts; Update on Wild Horse and Burro Strategic Plan Comments; Video Presentation of Secretary Babbitt's Address on National Landscape Conservation System; Presentation on Wilderness Access/Valid Existing Rights and Recent IBLA Decisions; Update Proposed Field Office Rangeland Resource Teams; Reports from BLM Field Office Managers; Reports by the Standards and Guidelines, Recreation and Public Relations, Wild Horse and Burro Working Groups; Reports from RAC members; and Discussion of future meetings. A public comment period will be provided at 11:00 a.m. on May 11, 2000, for any interested publics who wish to address the Council. On May 12, the RAC will tour the BLM San Pedro Riparian National Conservation Area. The tour will highlight some of the issues facing the San Pedro River and the riparian corridor, including
Deborah Stevens, Bureau of Land Management, Arizona State Office, 222 North Central Avenue, Phoenix, Arizona 85004-2203, (602) 417-9215.
Bureau of Land Management, DOI.
Notice is hereby given that 92,000 acres of public land will be designated as open, closed, or limited to OHV use in the Pryor Mountain area pursuant to 43 CFR, Part 8342.1 and Executive Order 11644.
The area affected has been previously designated. This notice is to update and correct errors in the September 25, 1979 and August 4, 1987 designations. The area affected is located approximately 80 miles south of Billings, Montana, in Carbon County described as follows:
All OHV use on the following public lands are limited to designated open roads and authorized use.
T.7S., R.25E., all public lands in Sections 22, 23, 27-29, Section 32 SESE, 33 & 34.
T.8S., R.25E., all public land in Sections 3, 4, 9, 10, 14, 15, 22 & 23 and in Section 5 all public lands east of the Pryor Gap Road.
T.8S., R.26E., all public lands in Sections 31 & 32.
T.9S., R.26E., all public lands in Sections 1-4, 10-15, 22-27, 34, 35, and public lands north of Helt Road [1016] in Sections 5, 6, 8, 9.
T.9S., R.27E., all public land.
T.8S., R.28E., all public land.
T.9S., R.28E., all public land.
The following roads are designated open within the Pryor Mountain area:
Bear Canyon Ridge Road [1031] from East Horsehaven [1030] T.9S., R.26E., Section 2, meandering north to the Custer National Forest in Section 2.
Bear Canyon Road [1014] from the intersection of Helt Road [1016], NW, Section 9, T.9S., R.26E., meandering northeast for approximately 3 miles to within
Bent Springs Road [1039] from T.7S., R.25E., Section 29 meandering east for about 2
Burnt-Timber Ridge Road [1018] starting in Section 25, T.9S., R.27E., meandering north for approximately 10 miles becoming USFS Road 2849 through public land Section 18, T.8S., R.28E.
Crooked Creek Road [1017] from T.9S., R.27E., Section 33, meandering north to the Custer National Forest Section 3, T.9S., R.27E.
Dandy Mine Road [1034] from junction of Red Pryor Mountain Road, T.9S., R.27E., Section 9 meandering east to the junction of Crooked Creek Road [1017] T.9S., R.27E., Section 9.
Demi John Flat Road [1035] is designated as open. The road starts at Crooked Creek Road [1017] at the north boundary of Section 3, T.9S., R.27E., and southerly approximately 2 miles to the south boundary of Section 10.
East Horsehaven Road [1030] starting in T.9S., R.27E., Section 18, meandering north then northeast in Section 6, T.9S., R.27E., to the Custer National Forest.
East Petroglyph Canyon Road [1040] from T.9S., R.26E., Section 24 meandering south for approximately 1
Gyp Spring Road [1015] starting at T.10S., R.27E., Section 4, meandering NW for approximately 6 miles to T.9S., R.26E. Section 9.
Helt Road [1016] from T.9S., R.27E., Section 33 meandering north then west, approximately 14 miles to the NWNE, Section 1, T.9S., R.25E.
Inferno Canyon Road [1050] from T.8S., R.25E., south boundary of Section 11, USFS boundary extends southwesterly approximately 1
Lower Timber Ridge Road [1048] goes north across T.8S., R.25E. Section 4,
Miller Trail Road [1046] starts in SESE of Section 32, T.7N., R.25E. and proceeds approximately 2
Red Pryor Mountain Road [1022] starting T.9S., R.27E., Section 17, at the junction of Helt Road [1016] meandering north for approximately 3 miles to the Custer National Forest.
Stockman Trail [1013] from T.9S., R.26E., Section 6, meandering north for approximately 2 miles through the Custer National Forest.
Sykes Road East Loop [1033] from the intersection of Sykes Ridge Road [1019] in the NW Section 34, T.9S., R.28E., to the point it returns to Sykes Ridge Road [1019] in the NWNE Section 28.
Sykes Ridge Road [1019] starting at T.58N., R.95W., Section 23 meandering north for approximately 12 miles to T.8S., R.28E., Section 17.
Sykes Spring Road [1052] starts at junction of Sykes Ridge Road [1019], SW Section 23, T.58N., R95W north to Montana-Wyoming line.
Timber Canyon Road [1049] from T.7S., R.25E. Section 9 meandering northeast for about 1 mile then ends.
Timber Ridge Road [1047] from USFS boundary at the east boundary of Section 3, T.8S., R.25E., and extends west approximately 2 miles to the west boundary of the SENW, Section 4.
Water Canyon Road [1051] T.8S., R.25E., Section 10 from west line of Section 10 approximately 1 mile to Custer National Forest.
West Horsehaven Road [1021] starting in T.9E., R.26E., Section 10 meandering northeast then southeast to the junction of East Horsehaven [1030].
West Petroglyph Canyon Road [1036] from T.9S., R.26E., Section 24 meandering southeast for approximately 1
Any issues or concerns should be submitted to the BLM at the below address on or before May 22, 2000.
David Jaynes, Assistant Field Manager, BLM, PO BOX 36800, 5001 Southgate Drive, Billings, Montana 59107 or 406-896-5013.
Bureau of Reclamation, Interior.
Notice of intent to prepare an environmental document (environmental assessment or environmental impact statement) and notice of public meetings.
Pursuant to Section 102(2)(C) of the National Environmental Policy Act (NEPA) of 1969, as amended, the Bureau of Reclamation (Reclamation)
At present it is not clear whether the scope of the action and anticipated project impacts will require preparation of an environmental impact statement (EIS) instead of an environmental assessment (EA). However, to ensure the timely and appropriate level of NEPA compliance and to limit potential future delays to the project schedule, Reclamation is proceeding as if the project impacts can be adequately analyzed through preparation of an EA. Reclamation will reevaluate the need for an EIS after obtaining written and oral comments on the project scope, alternatives and environmental impacts, and after Reclamation's evaluation of potential impacts of the proposed project. Reclamation will publish a notice of change if a decision is made to prepare an EIS rather than an EA. However, the scoping process to be conducted will suffice for either course of action.
There are no known environmental justice issues associated with the proposed action. The water acquisition program supported by Reclamation funds will avoid, where possible, any adverse impacts to Indian Trust Assets. If adverse impacts cannot be avoided, appropriate mitigation or compensation will be provided.
Four scoping meetings will be held to solicit comments from interested parties to assist in determining the scope of the environmental analysis and to identify the significant issues related to this proposed action. The meeting dates are:
• Monday, May 8, 2000, at 7:00 p.m., in Fallon, Nevada.
• Tuesday, May 9, 2000, at 7:00 p.m., in Fernley, Nevada.
• Wednesday, May 10, 2000, at 7:00 p.m., in Nixon, Nevada.
• Thursday, May 11, 2000, at 7:00 p.m., in Carson City, Nevada.
Written comments on the scope of the environmental documents should be submitted by May 25, 2000, to the address listed below.
The meeting locations are as follows:
• Fallon—Fallon Convention Center, 100 Campus Way, Fallon, NV 89406; telephone: (775) 423-4556.
• Fernley—Fernley Town Complex, 595 Silver Lace Blvd., Suite 117, Fernley, NV 89408; telephone: (775) 575-5455.
• Nixon—Pyramid Lake Paiute Tribe Council Chambers, 208 Capital Hill (Highway 447) Nixon, NV 89424; telephone: (775) 574-1000.
• Carson City—Nevada State Library, 100 N Stewart Street, Conference Room A, Carson City, NV 89701; telephone: (775) 684-3313.
Written comments on the scope of the environmental documents should be submitted to Caryn Huntt DeCarlo, Environmental Specialist, Bureau of Reclamation, Lahontan Basin Area Office, Attention: LO-450, P.O. Box 640, Carson City, NV 89702.
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's's identity from public disclosure, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public disclosure in their entirety.
Caryn Huntt DeCarlo at telephone and TDD: (775) 882-3436, Lahontan Basin Area Office, Attention: LO-450, P.O. Box 640, Carson City, NV 89702.
The purpose of the Newlands Project Water Rights Fund program is to provide a mechanism for meeting some of the goals outlined in A.B. 380 through acquisition and retirement of 6,500 acres of surface water rights. The goals of A.B. 380 include resolving certain administrative and judicial proceedings involving challenges to Newlands Project and Truckee Meadows water rights. These proceedings are time consuming and costly for all parties involved, and the need for resolution is the purpose of A.B. 380 and the water rights acquisition and retirement program.
Persons requiring any special services should contact Caryn Huntt DeCarlo at (775) 882-3436. Please notify Ms. Huntt DeCarlo as far in advance of the particular meeting as possible, but no later than 3 working days prior to the meeting to enable Reclamation to secure the services. If a request cannot be honored, the requester will be notified.
Bureau of Reclamation, Interior.
Notice of availability of a draft agency handbook on the National Environmental Policy Act.
Pursuant to the Council on Environmental Quality's Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act (NEPA), Section 1507.3, the Bureau of Reclamation has prepared a handbook to provide basic guidance to its employees on NEPA issues. Comments on the document will be accepted.
A 60-day public review period commences with the publication of this notice. Comments must be submitted to Reclamation at the addresses provided below no later than June 19, 2000.
Written comments on the NEPA Handbook should be addressed to the Bureau of Reclamation, Office of Policy, Attention: Dr. Darrell Cauley, Manager—Environmental and Planning Coordination, D-5100, Denver Federal Center, PO Box 25007, Denver, CO 80225-0007.
Our practice is to make comments, including names and home addresses of respondents, available for public review. Individual respondents may request that we withhold their home address from public disclosure, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold a respondent's identity from public disclosure, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves
The entire document is available at http://www.usbr.gov/nepa on the Internet. Copies of the NEPA Handbook may also be requested from Theresa Taylor at the above address or via the INTERNET at nepa@do.usbr.gov or by calling (303) 445-2826.
Copies of the NEPA Handbook are available for public inspection and review at the following locations:
• Bureau of Reclamation, Reclamation Service Center Library, Building 67, Room 167, Denver Federal Center, 6th and Kipling, Denver, Colorado 80225; telephone: (303) 445-2072
• Natural Resources Library, U.S. Department of the Interior, 1849 C Street NW, Main Interior Building, Washington, DC 20240-0001
Theresa Taylor, Bureau of Reclamation, Office of Policy, at (303) 445-2826.
The NEPA Handbook was developed to assist Reclamation employees who are required to comply with the National Environmental Policy Act and various other environmental laws as part of their daily work. The document was first published in 1991. After Reclamation was reorganized in 1994 to reflect a decentralization of decision making and authority, the NEPA Handbook needed major revisions to reflect the reorganization and to update the content. The handbook was extensively revised and has gone through various stages of reviews both internally and with the Council on Environmental Quality. At the commencement of the public review, comments received will be considered as part of a final revision of the handbook.
Notice.
The Department of Labor, as part of its continuing effort to reduce paperwork and respondent burden conducts a preclearance consultation program to provide the general public and Federal agencies with an opportunity to comment on proposed and/or continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA95) [44 U.S.C. 3506(c)(2)(A)]. This program helps to ensure that requested data can be provided in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the impact of collection requirements on respondents can be properly assessed.
Submit comments on or before June 19, 2000.
Send comments to Theresa M. O'Malley, Program Analysis Officer, Office of Program Evaluation and Information Resources, 4015 Wilson Boulevard, Room 715, Arlington, VA 22203-1984. Commenters are encouraged to send their comments on a computer disk, or via Internet E-mail to tomalley@msha.gov, along with an original printed copy. Ms. O'Malley can be reached at (703) 235-1470 (voice), or (703) 235-1563 (facsimile). Ms. O'Malley can be reached at tomalley@msha.gov (Internet E-mail), (703) 235-1470 (voice), or (703) 235-1563 (facsimile).
30 CFR 56/57.3203 and 75.204 address the quality of rock fixtures and their installation. Roof and rock bolts and accessories are an integral part of ground control systems and are used to prevent the fall of roof, face, and ribs. These standards require that metal and nonmetal and coal mine operators obtain a certification from the manufacturer that rock bolts and accessories are manufactured and tested in accordance with the 1995 American Society for Testing and Materials (ASTM) publication “Standard Specification for Roof and Rock Bolts and Accessories” (ASTM F432-95).
Currently, the Mine Safety and Health Administration (MSHA) is soliciting comments concerning the proposed extension of the information collection related to the Safety Standards for Roof Bolts in Metal and Nonmetal Mines and Underground Coal Mines. MSHA is particularly interested in comments which:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collectin techniques or other forms of information technology,
A copy of the proposed information collection request may be viewed on the Internet by accessing the MSHA Home Page (
MSHA is seeking to continue the requirement for mine operators to obtain certification from the manufacturer that roof and rock bolts and accessories are manufactured and tested in accordance with the applicable American Society for Testing and Materials (ASTM) specifications and make that certification available to an authorized representative of the Secretary.
Comments submitted in response to this notice will be summarized and/or included in the request for Office of Management and Budget approval of the information collection request; they will also become a matter of public record.
National Science Foundation.
Notice of permits issued under the Antarctic Conservation of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Office, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On February 9, 2000, the National Science Foundation published a notice in the
National Science Foundation.
Notice of permit modification issued under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish notice of permits issued under the Antarctic Conservation Act of 1978. This is the required notice.
Nadene G. Kennedy, Permit Officer, Office of Polar Programs, Rm. 755, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
On February 17, 2000, notice was published in the
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Railroad Retirement Board (RRB) has submitted the following proposal(s) for the collection of information to the Office of Management and Budget for review and approval.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
Copies of the forms and supporting documents can be obtained from Chuck Mierzwa, the agency clearance officer (312-751-3363). Comments regarding the information collection should be addressed to Ronald J. Hodapp, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois, 60611-2092 and the OMB reviewer, Joe Lackey (202-395-7316), Office of Management and Budget, Room 10230, New Executive Office Building, Washington, D.C. 20503.
Notice is hereby given that the following filing(s) has/have been made with the Commission pursuant to provisions of the Act and rules promulgated under the Act. All interested persons are referred to the application(s) and/or declaration(s) for complete statements of the proposed transaction(s) summarized below. The application(s) and/or declaration(s) and any amendment(s) is/are available for public inspection through the Commission's Branch of Public Reference.
Interested persons wishing to comment or request a hearing on the application(s) and/or declaration(s) should submit their views in writing by May 9, 2000, to the Secretary, Securities and Exchange Commission, Washington, D.C. 20549-0609, and serve a copy on the relevant applicant(s) and/or declarant(s) at the address(es) specified below. Proof of service (by affidavit or, in the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts or law that are disputed. A person who so requests will be notified of any hearing, if ordered, and will receive a copy of any notice or order issued in the matter. After May 9, 2000, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Conectiv, a registered public utility holding company, and its public-utility subsidiary companies, Atlantic City Electric Company (“ACE”) and Delmarva Power & Light Company (“DPL”, and, together with Conectiv and ACE, “Applicants”), all located at 800 King Street, Wilmington, Delaware 19899, have filed a declaration under section 12(d) of the Act and rules 44 and 54 under the Act.
The Applicants propose the joint sale by ACE and DPL of a 7.51 percent ownership interest in the Peach Bottom Atomic Power Station Units 2 and 3 (“Peach Bottom”), located in York County, Pennsylvania, the PECO Energy Company (“PECO”), a section 3(a)(2) exempt holding company under the Act. At present, ACE and DPL jointly own a 15.02 percent interest in Peach Bottom. PECO presently owns a 42.49 percent interest in Peach Bottom.
ACE is a New Jersey corporation that distributes and sells electricity at retail in southern New Jersey. DPL is a Delaware and Virginia corporation that distributes and sells electricity at retail in Delaware, Maryland and Virginia, and gas at retail in Delaware.
The proposed sale of ACE's and DPL's interests in Peach Bottom to PECO (the “Transaction”) is related to several other transactions involving the sale of Applicants' interests in various nuclear assets. In addition to this Transaction, ACE and DPL have agreed to sell all of their remaining ownership interests in several nuclear generating plants, including Peach Bottom, to PSEG Power, L.L.C. (“PSEG Power”), a wholly owned non-utility subsidiary of Public Service Enterprise Group Incorporated (“PSEG”), an exempt public utility holding company under the Act. Public Service Electric & Gas Company (“PSE&G”), a wholly owned public utility subsidiary of PSEG, owns the remaining 42.49 percent interest in Peach Bottom.
According to the terms of the two Purchase Agreements between ACE and PECO and between DPL and PECO, each dated as of September 27, 1999, ACE and DPL will each receive $2,550,000 for their interests in Peach Bottom, and each will also receive 3.755 percent of the net book value of the Nuclear Fuel Supplies
The net book value of the Applicants' interests in Peach Bottom totalled $9,394,000 as of December 31, 1999.
ACE, consistent with New Jersey state law, will apply the proceeds it receives from the sale of Peach Bottom to partially offset stranded costs it will recover from its retail customers in New Jersey. DPL will use the proceeds for various activities consistent with its corporate strategy.
The Southern Company (“Southern”), a registered holding company, 270 Peachtree Street, N.W., Atlanta, Georgia 30303, and its electric utility subsidiary companies (“Electric Subsidiaries”), Georgia Power Company (“Georgia”), 241 Ralph McGill Boulevard, N.E., Atlanta, Georgia 30308, Gulf Power Company (“Gulf”), One Energy Place, Pensacola, Florida 32520, Mississippi Power Company (“Mississippi”), 2992 West Beach, Gulfport, Mississippi 39501, and Savannah Electric and Power Company (“Savannah”) (collectively, “Applicants”), 600 Bay Street East, Savannah, Georgia 31401, have filed an application-declaration (“Application-Declaration”) under sections 6(a), 7, 9(a), 10, and 12(b) of the Act and rules 45, 53 and 54 under the Act.
In summary, Applicants, request authority for Southern to organize and acquire all of the outstanding capital stock of a special purpose financing vehicle (“SPV”). Applicants also request authority for the SPV to issue commercial paper for the benefit of the Electric Subsidiaries and other subsidiaries of Southern. In addition, Applicants request authority for each Electric Subsidiary to borrow the proceeds from the sales of commercial paper issued for its benefit. Further,
Applicants propose that the SPV sell the commercial paper directly to or through a dealer or dealers from time to time prior to June 30, 2004 (“Authorization Period”) in an aggregate principal amount at any one time outstanding of up to $3.5 billion. Georgia, Gulf, Mississippi, and Savannah propose to borrow the proceeds of these sales in outstanding amounts that will not during the Authorization Period exceed $1.7 billion, $300 million, $350 million, and $90 million, respectively. The commercial paper notes will be issued in denominations of not less than $50,000 and will not by their terms be prepayable prior to maturity. Maturities will be determined by market conditions, the effective interest costs, and the anticipated cash flows of the particular requesting Electric Subsidiary, including the proceeds of other borrowings, at the time of issuance.
The notes will mature in one year or less, subject to extensions; provided, however, none of the notes will mature in more than 390 days. The discount rate (or the interest rate in the case of interest-bearing notes), including any commissions, will not be in excess of the discount rate per annum (or the equivalent interest rate) prevailing at the date of issuance for commercial paper of comparable quality having the same maturity. The terms of each of these borrowings by an Electric Subsidiary will be identical to those of the related commercial paper issued for its benefit.
It is further proposed that Georgia guarantee loans by the SPV to SEGCO. The aggregate amount of these guarantees will not during the Authorization Period exceed $150 million.
The proceeds from the proposed borrowings by the Electric Subsidiaries and SEGCO will be used for general corporate purposes, including the financing in part of their respective construction programs.
For the Commission by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application under section 17(b) of the Investment Company Act of 1940 (the “Act”) for an exemption from section 17(a) of the Act.
Applicants request an order to permit certain series of a registered open-end management investment company to acquire all of the assets and assume all of the liabilities of certain other series of the investment company. Because of certain affiliations, applicants may not rely on rule 17a-8 under the Act.
Nations Fund Trust (“NFT”) and Banc of America Advisors, Inc. (“BAAI”).
The application was filed on February 1, 2000. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 8, 2000, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Applicants, One Bank of America Plaza, 101 South Tryon Street, Charlotte, NC 28255.
Lawrence W. Pisto, Senior Counsel, at (202) 942-0527, or George J. Zornada, Branch Chief, at (202) 942-0564 (Office of Investment Company Regulation, Division of Investment Management).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 Fifth Street, NW, Washington, DC 20549-0102 (tel. (202) 942-8090).
1. NFT, a Massachusetts business trust, is registered under the Act as an open-end management investment company. NFT presently offers 36 series, including Nations Managed Value Index Fund and Nations Managed SmallCap Value Index Fund (the “Acquired Series”) and Nations Managed Index Fund and Nations Small Cap Index Fund (the “Acquiring Series”). Collectively, the Acquired Series and the Acquiring Series are referred to as the “Series.”
2. BAAI is the investment adviser to each of the Series. The adviser is a wholly-owned indirect subsidiary of the Bank of America Corporation and is registered as an investment adviser under the Investment Advisers Act of 1940.
3. Currently, Bank of America Corporation and entities that are under common control with BAAI (the “Bank of America Group”), hold of record, in their name and in the names of their nominees, more than 5% (and with respect to certain of the Series more than 25%) of the outstanding voting securities of the Series. All of the securities are held for the benefit of others in a fiduciary or representative capacity. None of the Bank of America Group owns an economic interest in any of the Series.
4. On December 9, 1999, the board of trustees of NFT (the “Board”), including a majority of the trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“Disinterested Trustees”), approved an Agreement and Plan of Reorganization (the “Reorganization Agreement,” and the transaction the “Reorganization”). Under the Reorganization Agreement, on the day following the closing date (the “Closing Date”), which is currently
5. Applicants state that the Acquired Series pursue investment objectives, follow investment strategies and present investments risks that are generally similar to those of the corresponding Acquiring Series. Applicants state that all of the Series offer identical Primary A and Investor A shares.
6. The Board, including all the Disinterested Trustees, determined that the Reorganization is in the best interests of each of the Acquired Series and each of the Acquiring Series, and that the interests of the shareholders of the Acquired Series and Acquiring Series would not be diluted by the Reorganization. In assessing the Plan, the factors considered by the Board included, among others, (a) the terms and conditions of the Reorganization, (b) the expense ratios, fees and expenses of the Acquired Series compared to the Acquiring Series, (c) the compatibility of investment objectives, (d) the fact that BAAI or an affiliate will bear the expenses incurred in connection with the Reorganization, and (e) the tax-free nature of the Reorganization.
7. The Reorganization Agreement is subject to a number of conditions precedent, including that: (1) The shareholders of the Acquired Series approve the Reorganization Agreement, (b) definitive proxy solicitation materials shall have been filed with the Commission and distributed to shareholders of the Acquired Series, (c) the Acquiring and Acquired Series receive an opinion of tax counsel that the Reorganization will be tax-free for each Series and its shareholders, and (d) applicants receive from the Commission an exemption from section 17(a) of the Act for the Reorganization. The Reorganization Agreement may be terminated and the Reorganization abandoned at any time by consent of the Board; the Board may also terminate the Reorganization Agreement if its conditions are not satisfied. Applicants agree not to make any material changes to the Reorganization Agreement without prior Commission approval.
8. Definitive proxy solicitation materials have been filed with the Commission and were mailed to shareholders of the Acquired Series on February 4, 2000. A special meeting of shareholders is scheduled for April 21, 2000.
1. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of that person, acting as principal, from selling any security to, or purchasing any security from, the company. Section 2(a)(3) of the Act defines an “affiliated person” of another person to include (a) any person that directly or indirectly owns, controls, or holds with power to vote 5% or more of the outstanding voting securities of the other person; (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with power to vote by the other person; (c) any person directly or indirectly controlling, controlled by, or under common control with the other person; and (d) if the other person is an investment company, any investment adviser of that company. Applicants state that the Series may be deemed affiliated persons and thus the Reorganization prohibited by section 17(a).
2. Rule 17a-8 under the Act exempts from the prohibitions of section 17(a) mergers, consolidations, or purchases or sales of substantially all of the assets of registered investment companies that are affiliated persons, or affiliated persons of an affiliated person, solely by reason of having a common investment adviser, common directors/trustees, and/or common officers, provided that certain conditions set forth in the rule are satisfied.
3. Applicants state that they may not rely on rule 17a-8 in connection with the Reorganization because each of the Series may be deemed to be affiliated for reasons other than having a common investment adviser, common directors, and/or common officers. Because the Bank of America Group holds of record more than 5% (and in some cases more than 25%) of the outstanding voting securities of each of the Series, each Acquired Series may be deemed an affiliated person of an affiliated person of each Acquiring Series.
4. Section 17(b) of the Act provides that the Commission may exempt a transaction from the provisions of section 17(a) if the evidence establishes that the terms of the proposed transaction, including the consideration to be paid, are reasonable and fair and do not involve overreaching on the part of any person concerned, and that the proposed transaction is consistent with the policy of each registered investment company concerned and with the general purposes of the Act.
5. Applicants submit that the terms of the Reorganization satisfy the standards set forth in section 17(b). Applicants note that the Board, including a majority of the Disinterested Trustees, found that participation in the Reorganization is in the best interests of each Series and that the interests of the existing shareholders of each Series will not be diluted as a result of the Reorganization. Applicants also note that the exchange of the Acquired Series' assets for shares in the Acquiring Series will be based on the Series' relative net asset values.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act.
Applicants request an order that would permit an open-end management investment company, whose portfolios will consist of the component securities of certain
Barclay Global Fund Advisors (“Adviser”), iShares Trust (“Fund”) and its current index series (“Initial Index Series”) and future index series (“Future Index Series”, and together with the Initial Index Series, the “Index Series”), and SEI Investments Distribution Company (“Distributor”).
The application was filed on April 30, 1999. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 5, 2000 and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a hearing by writing to the Commission's Secretary.
Secretary, Commission, 450 5th Street, NW, Washington, D.C. 20549-0609. Adviser, 45 Fremont Street, San Francisco, CA 94105; Fund, c/o Investors Bank & Trust Company, 200 Clarendon Street, Boston, MA 02116; and Distributor, 1 Freedom Valley Drive, Oaks, PA 19456.
Anu Dubey, Senior Counsel, at (202) 942-0687, or Michael Mundt, Branch Chief, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 5th Street, NW, Washington, D.C. 20549-0102 (tel. 202-942-8090).
1. The Fund is an open-end management investment company registered under the Act and established in the state of Delaware. The Adviser, an investment adviser registered under the Investment Advisers Act of 1940, will serve as investment adviser to the Fund. The Distributor, a broker-dealer unaffiliated with the Adviser and registered under the Securities Exchange Act of 1934 (“Exchange Act”), will serve as the principal underwriter of the Fund's shares on an agency basis.
2. Each Index Series will invest in a portfolio of securities (“Portfolio Securities”) generally consisting of the component securities of a specified foreign securities index (“Subject Index”),
3. The investment objective of each Index Series will be to provide investment results that correspond generally to the price and yield performance of its relevant Subject Index. Intraday values of each Subject Index will be disseminated every 15 seconds throughout the trading day. An Index Series will utilize as an investment approach either a replication strategy or a representative sampling strategy. An Index Series using a replication strategy generally will hold most of the component securities of its Subject Index, but may not hold all of the underlying securities that comprise a Subject Index in certain instances. This may be the case when, for example, a potential component security is illiquid or when there are practical difficulties or substantial costs involved in holding every security in a Subject Index. An Index Series using a representative sampling strategy seeks to hold a representative sample of the component securities of the Subject Index and will invest in some but not all of the component securities of its Subject Index.
4. Shares of an Index Series (“Shares”) will be sold in aggregations of 50,000 Shares (“Creation Units”) as specified in the relevant prospectus. The price of a Creation Unit will range from $1,000,000 to $8,500,000. Creation Units may be purchased only by or through a Depository Trust Company (“DTC”) participant. The DTC participant must enter into a participant agreement with the Distributor (“Authorized Participant”). Creation Units generally will be issued in exchange for an in-kind deposit of securities and cash. The Index Series also may sell Creation Units on a “cash only” basis in limited circumstances. An investor wishing to make an in-kind purchase of a Creation Unit from an Index Series will have to transfer to the Fund a “Portfolio Deposit” consisting of (i) a portfolio of securities that has been selected by the Adviser to correspond generally to the price and yield performance of the relevant Subject Index (“Deposit Securities”), and (ii) a cash payment or credit to equalize any difference between (a) the total aggregate market value per Creation Unit of the Deposit Securities and (b) the net asset value (“NAV”) per Creation Unit of the Index Series (the “Balancing Amount”).
5. Orders to purchase Creation Units will be placed with the Distributor who will be responsible for transmitting the orders to the Fund. The Distributor will issue confirmations of acceptance, issue delivery instructions to the Fund to implement the delivery of Creation Units, and maintain records of the orders and confirmations. The Distributor also will be responsible for delivering prospectuses to purchasers of Creation Units.
6. Persons purchasing Creation Units from an Index Series may hold the Shares or sell some or all of them in the secondary market. Shares will be listed on the AMEX and traded in the secondary market in the same manner as other equity securities. One or more AMEX specialists will be assigned to make a market in Shares. The price of Shares traded on the AMEX will be based on a current bid/offer market, and each Share is expected to have a market value of between $20 an $170. Transactions involving the sale of Shares in the secondary market will be subject to customary brokerage commissions and charges.
7. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs (which could include institutional investors). The AMEX Specialist, in providing for a fair and orderly secondary market for Shares, also may purchase Shares for use in its market-making activities on the AMEX. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
8. Shares will not be individually redeemable. Shares will only be redeemable in Creation Unit-size aggregations through each Index Series. To redeem, an investor will have to accumulate enough Shares to constitute a Creation Unit. An investor redeeming a Creation Unit generally will receive (i) a portfolio of Portfolio Securities in effect on the date the request for redemption is made (“Redemption Securities”), which may not be identical to the Deposit Securities applicable to the purchase of Creation Units, and (ii) a “Cash Redemption Payment,” consisting of an amount calculated in the same manner as the Balancing Amount, although the actual amounts may differ if the Redemption Securities are not identical to the Deposit Securities. An investor may receive the cash equivalent of a Redemption Security in certain circumstances, such as where a redeeming entity is restrained by regulation or policy from transacting in the Redemption Security. An Index Series may redeem Creation Units in cash in limited circumstances, such as when it is not possible to effect deliveries of Redemption Securities in the applicable jurisdiction.
9. Because each Index Series will redeem Creation Units in-kind, an Index Series will not have to maintain cash reserves for redemptions. This will allow the assets of each Index Series to be committed as fully as possible to tracking its Subject Index. Accordingly, applicants state that each Index Series will be able to track its Subject Index more closely than certain other investment products that must allocate a greater portion of their assets for cash redemptions.
10. Applicants state that neither the Fund nor any Index Series will be marketed or otherwise held out as an “open-end investment company” or a “mutual fund.” Rather, the designation of the Fund and the Index Series in all marketing materials will be limited to the terms “exchange-traded fund,” “investment company,” “fund,” or “trust” without reference to an “open-end fund” or “mutual fund,” except to contrast the Fund and the Index Series with a conventional open-end investment company. Any marketing materials that describe the purchase or sale of Creation Units, or refer to redeemability, will prominently disclose that Shares are not individually redeemable and that owners of Shares may tender Shares for redemption to the Fund in Creation Unit aggregations only. The same type of disclosure will be provided in each Index Series' prospectus, SAI, and all reports to shareholders.
1. Applicants request an order under section 6(c) of the Act granting an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c-1 under the Act; and under sections 6(c) and 17(b) of the Act granting an exemption from sections 17(a)(1) and (a)(2) of the Act. Applicants
2. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction, or any class of persons, securities, or transactions, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its presentation to the issuer, is entitled to receive approximately his proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order under section 6(c) of the Act that would permit the Fund to register and operate as an open-end management investment company and issue Shares that are redeemable in Creation Units. Applicants state that investors may purchase Shares in Creation Units from each index Series and redeem Creation Units through each Index Series. Applicants further state that because the market price of Creation Units will be disciplined by arbitrage opportunities, investors generally should be able to sell Shares in the secondary market at approximately their NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is being currently offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) and rule 22c-1. Applicants request an exemption under section 6(c) of the Act from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (i) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (ii) prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (iii) assure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state (i) that secondary market trading in Shares would not cause dilution for owners of Shares because such transactions do not directly involve Index Series assets, and (ii) to the extent different prices exist during a given trading day, or from day to day, these variances will occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because arbitrage activity will ensure that the difference between the market price of Shares and their NAV remains narrow.
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants state that local market delivery cycles for transferring Redemption Securities to redeeming investors, together with local market holiday schedules, will require a delivery process in excess of seven calendar days for some Index Series in certain circumstances during the calendar year. Applicants request relief under section 6(c) from section 22(e) so that certain of the Index Series may pay redemption proceeds up to twelve calendar days after the tender of Shares for redemption.
8. The principal reasons for the requested exemption is that settlement of redemptions for the Index Series is contingent not only on the settlement cycle of the United States market but also on the currently practicable delivery cycles in the local markets for the underlying foreign securities of each Index Series. Applicants believe that the Fund will be able to comply with the delivery requirements of section 22(e) except where the holiday schedule applicable to the specific foreign market will not permit delivery of redemption proceeds within seven calendar days.
9. Applicants state that section 22(e) of the Act was designed to prevent unreasonable, undisclosed, and unforeseen delays in the payment of redemption proceeds. Applicants assert that their requested relief will not lead to the problems section 22(e) was designed to prevent. Delays in the payment of Shares redemption proceeds will occur principally due to local holidays. Applicants state that the SAI will disclose those local holidays (over the period of at least one year following the date of the SAI), if any, that are expected to prevent the delivery of redemption proceeds in seven calendar days and the maximum number of days needed to deliver the proceeds for each Index Series. Applicants state that the local holidays relevant to each Index Series as in effect in a given year will be listed in the series' prospectus or SAI or both, and these disclosure documents will identify instances in such year when, due to such holidays, more than
10. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such person, from selling any security to or purchasing any security from the company. Because purchases and redemptions of Creation Units may be “in kind” rather than cash transactions, section 17() may prohibit affiliated persons of an Index Series from purchasing or redeeming Creation Units in-kind. Because the definition of “affiliated person” of another person in section 2(a)(3)(A) of the Act includes any person owning five percent or more of an issuer's outstanding voting securities, every purchaser of a Creation Unit will be affiliated with the Index Series so long as fewer than twenty Creation Units are in existence. In addition, any person owning more than 25% of the Shares of an Index Series may be deemed an affiliated person under section 2(a)(3)(C) of the Act. Applicants request an exemption from section 17(a) under sections 6(c) and 17(b), to permit these affiliated persons of the Index Series to purchase and redeem Creation Units.
11. Section 17(b) authorizes the Commission to exempt a proposed transaction from section 17(a) if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Applicants contend that no useful purpose would be served by prohibiting persons with the types of affiliations described above from purchasing or redeeming Creation Units. The deposit procedure for in-kind purchases and redemptions will be the same for all purchases and redemptions, and Deposit Securities and Redemption Securities will be valued under the same objective standards applied to valuing Portfolio Securities. Therefore, applicants state that in-kind purchases and redemptions will afford no opportunity for an affiliated person of an Index Series to effect a transaction detrimental to the other holders of Shares. Applicants also believe that in-kind purchases and redemptions will not result in abusive self-dealing or overreaching by affiliated persons of the Index Series.
Applicants agree that the order granting the requested relief will be subject to the following conditions:
1. Applicants will not register a Future Index Series of the Fund by means of filing a post-effective amendment to the Fund's registration statement or by any other means, unless (i) applicants have requested and received with respect to such Future Index Series, either exemptive relief from the Commission or a no-action letter from the Division of Investment Management of the Commission or (ii) the Future Index Series will be listed on a national securities exchange without the need for a filing pursuant to rule 19b-4 under the Exchange Act.
2. Each Index Series' prospectus will clearly disclose that, for purposes of the Act, Shares are issued by the Index Series and that the acquisition of Shares by investment companies is subject to the restrictions of section 12(d)(1) of the Act.
3. As long as the Fund operates in reliance on the requested order, the Shares will be listed on a national securities exchange.
4. Neither the Fund nor any Index Series will be advertised or marketed as an open-end fund or mutual fund. Each Index Series' prospectus will prominently disclose that Shares are not individually redeemable shares and will disclose that the owners of Shares may acquire those Shares from the Index Series and tender those shares for redemption to the Index Series in Creation Units only. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire those Shares from the Index Series and tender those Shares for redemption to the Index Series in Creation Units only.
For the Commission, by the Division of Investment Management, under delegated authority.
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from sections 2(a)(32), 5(a)(1), and 22(d) of the Act and rule 22c-1 under the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and (a)(2) of the Act.
Applicants request an order that would permit an open-end management investment company, whose portfolios will consist of the component securities of certain domestic indices, to issue shares of limited redeemability; permit secondary market transactions in the shares of the portfolios at negotiated prices on the American Stock Exchange LLC (“AMEX”); and permit affiliated persons of the portfolios to deposit securities into, and receive securities from, the portfolios in connection with the purchase and redemption of aggregations of the portfolios' shares.
Barclays Global Fund Advisors (“Adviser”), iShares Trust (“Fund”) and its current index series (“Initial Index Series”) and future index series (“Future Index Series,” and together with the Initial Index Series, the “Index Series”), and SEI Investments Distribution Company (“Distributor”).
The application was filed on April 30, 1999. Applicants have agreed to file an amendment during the notice period, the substance of which is reflected in this notice.
An order granting the requested relief will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on May 5, 2000 and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons may request notification of a
Secretary, Commission, 450 5th Street, NW, Washington, D.C. 20549-0609. Adviser, 45 Fremont Street, San Francisco, CA 94105; Fund, c/o Investors Bank & Trust Company, 200 Clarendon Street, Boston, MA 02116; and Distributor, 1 Freedom Valley Drive, Oaks, PA 19456.
Anu Dubey, Senior Counsel, at (202) 942-0687, or Michael Mundt, Branch Chief, at (202) 942-0564 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained for a fee at the Commission's Public Reference Branch, 450 5th Street, NW, Washington, D.C. 20549-0102 (tel. 202-942-8090).
1. The Fund is an open-end management investment company registered under the Act and established in the state of Delaware. The Adviser, an investment adviser registered under the Investment Advisers Act of 1940, will serve as investment adviser to the Fund. The Distributor, a broker-dealer unaffiliated with the Adviser and registered under the Securities Exchange Act of 1934 (“Exchange Act”), will serve as the principal underwriter of the Fund's shares on an agency basis.
Each Index Series will invest in a portfolio of securities (“Portfolio Securities”) generally consisting of the component securities of a specified domestic securities index (“Subject Index”).
3. The investment objective of each Index Series will be to provide investment results that correspond generally to the price and yield performance of its relevant Subject Index. Intra-day values of each Subject Index will be disseminated every 15 seconds throughout the trading day. An Index Series will utilize as an investment approach either a replication strategy or a representative sampling strategy. An Index Series using a replication strategy generally will hold most of the component securities of its Subject Index, but may not hold all of the underlying securities that comprise a Subject Index in certain instances. This may be the case when, for example, a potential component security is illiquid or when there are practical difficulties or substantial costs involved in holding every security in a Subject Index. An Index Series using a representative sampling strategy seeks to hold a representative sample of the component securities of the Subject Index and will invest in some but not all of the component securities of its Subject Index.
4. Shares of an Index Series (“Shares” will be sold in aggregations of 50,000 Shares (“Creation Units”) as specified in the relevant prospectus. The price of a Creation Unit will range from $1,000,000 to $8,500,000. Creation Units may be purchased only by or through a participation in the Continuous Net Settlement (“CNS”) System of the National Securities Clearing Corporation (“NSCC”) (such process, the “Shares Clearing Process”), or a Depository Trust Company (“DTC”) participant. In either case, the participant must enter into a participant agreement with the Distributor. Creation Units generally will be issued in exchange for an in-kind deposit of securities and cash. The Index Series also may sell Creation Units on a “cash only” basis in limited circumstances. An investor wishing to make an in-kind purchase of a Creation Unit from an Index Series will have to transfer to the Fund a “Portfolio Deposit” consisting of (i) a portfolio of securities that has been selected by the Adviser to correspond generally to the price and yield performance of the relevant Subject Index (“Deposit Securities”), and (ii) a cash payment to equalize any difference between (a) the total aggregate market value per Creation Unit of the Deposit Securities and (b) the net asset value (“NAV”) per Creation Unit of the Index Series (the “Balancing Amount”).
5. Orders to purchase Creation Units will be placed with the Distributor who will be responsible for transmitting the orders to the Fund. The Distributor will issue confirmations of acceptance, issue delivery instructions to the Fund to implement the delivery of Creation Units, and maintain records of the orders and confirmations. The Distributor also will be responsible for delivering prospectuses to purchasers of Creation Units.
6. Persons purchasing Creation Units from an Index Series may hold the Shares or sell some or all of them in the secondary market. Shares will be listed on the AMEX and traded in the secondary market in the same manner or other equity securities. One or more AMEX specialists will be assigned to make a market in Shares. The price of Shares traded on the AMEX will be based on a current bid/offer market, and each Share is expected to have a market value of between $20 and $170. Transactions involving the sale of Shares in the secondary market will be subject to customary brokerage commissions and charges.
7. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs (which could include institutional investors). The AMEX Specialist, in providing for a fair and orderly secondary market for Shares, also may purchase Shares for use in its market-making activities on the AMEX. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
8. Shares will not be individually redeemable. Shares will only be redeemable in Creation Unit-size aggregations through each Index Series.
9. Because each Index Series will redeem Creation Unites in-kind, an Index Series will not have to maintain cash reserves for redemptions. This will allow the assets of each Index Series to be committed as fully as possible to tracking its Subject Index. Accordingly, applicants state that each Index Series will be able to track its Subject Index more closely than certain other investment products that must allocate a greater portion of their assets for cash redemptions.
10. Applicants state that neither the Fund nor any Index Series will be marketed or otherwise held out as an “open-end investment company” or a “mutual fund.” Rather, the designation of the Fund and the Index Series in all marketing materials will be limited to the terms “exchange-traded fund,” “investment company,” “fund” or “trust” without reference to an “open-end fund” or “mutual fund,” except to contrast the Fund and the Index Series with a conventional open-end management investment company. Any marketing materials that describe the purchase or sale of Creation Units, or refer to redeemability, will prominently disclose that shares are not individually redeemable and that owners of Shares may tender Shares for redemption to the Fund in Creation Unit aggregations only. The same type of disclosure will be provided in each Index Series' prospectus, SAI and all reports to shareholders.
1. Applicants request an order under section 6(c) of the Act granting an exemption from sections 2(a)(32), 5(a)(1), and 22(d) of the Act and rule 22c-1 under the Act; and under sections 6(c) and 17(b) of the Act granting an exemption from sections 17(a)(1) and (a)(2) of the Act. Applicants request relief for the Initial Index Series as well as Future Index Series. Any Future Index Series relying on any order granted pursuant to this application will comply with the terms and conditions stated in this application.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction, or any class of persons, securities, or transactions, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the holder, upon its
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is being currently offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c-1 under the Act generally requires that a dealer selling, redeeming, or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in the prospectus, and not at a price based on NAV. Thus, purchases, and sales of Shares in the secondary market will not comply with section 22(d) and rule 22c-1. Applicants request an exemption under section 6(c) of the Act from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c-1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c-1, appear to have been designed to (i) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (ii) prevent unjust discrimination or preferential treatment among buyers resulting from sales at different prices, and (iii) assure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state (i) that secondary market trading in Shares would not cause dilution for owners of Shares because such transactions do not directly involved Index Series assets, and (ii) to the extent different prices exist during a given trading day, or from day to day, these variances will occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the proposed distribution system will be orderly because arbitrage activity will ensure that the difference between the market price of Shares and their NAV remains narrow.
7. Section 17(a) of the Act generally prohibits an affiliated person of a registered investment company, or an affiliated person of such person, from selling any security to or purchasing any security from the company. Because purchases and redemptions of Creation Units may be “in-kind” rather than cash transactions, section 17(a) may prohibit affiliated persons of an Index Series from purchasing or redeeming Creation Units. Because the definition of “affiliated person” of another person in section 2(a)(3)(A) of the Act includes any person owning five percent or more of an issuer's outstanding voting securities, every purchaser of a Creation Unit will be affiliated with the Index Series so long as fewer than twenty Creation Units are in existence. In addition, any person owning more than 25% of the Shares of an Index Series may be deemed an affiliated person under section 2(a)(3)(C) of the Act. Applicants request an exemption from section 17(a) under sections 6(c) and 17(b), to permit these affiliated persons of the Index Series to purchase and redeem Creation Units.
8. Section 17(b) authorizes the Commission to exempt a proposed transaction from section 17(a) if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Applicants contend that no useful purpose would be served by prohibiting persons with the types of affiliations described above from purchasing or redeeming Creation Units. The deposit procedure for in-kind purchases and redemption procedures for in-kind redemptions will be the same for all purchases and redemptions, and Deposit Securities and Redemption Securities will be valued under the same objective standards applied to valuing the Portfolio Securities. Therefore, applicants state that in-kind purchases and redemptions will afford no opportunity for an affiliated person of an Index Series to effect a transaction detrimental to the other holders of Shares. Applicants also believe that in-kind purchases and redemptions will not result in abusive self-dealing or overreaching by affiliated persons of the Index Series.
Applicants agree that the order granting the requested relief will be subject to the following conditions:
1. Applicants will not register a Future Index Series by means of filing a post-effective amendment to the Fund's registration statement or by any other means, unless (i) applicants have requested and received with respect to such Future Index Series, either exemptive relief from the Commission or a no-action letter from the Division of Investment Management of the Commission, or (ii) the Future Index Series will be listed on a national securities exchange without the need for a filing pursuant to rule 19b-4 under the Exchange Act.
2. Each Index Series' prospectus will clearly disclose that, for purposes of the Act, Shares are issued by the Index Series and that the acquisition of Shares by investment companies is subject to the restrictions of section 12(d)(1) of the Act.
3. As long as the Fund operates in reliance on the requested order, the Shares will be listed on a national securities exchange.
4. Neither the Fund nor any Index Series will be advertised or marketed as an open-end fund or mutual fund. Each Index Series' prospectus will prominently disclose that Shares are not individually redeemable shares and will disclose that the owners of Shares may acquire those Shares from the Index Series and tender those Shares for redemption to the Index Series in Creation Units only. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire those Shares from the Index Series and tender those Shares for
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Amex proposes to eliminate transaction, clearance, and floor brokerage fees for customer equity options orders. The Exchange also proposes to increase the specialist and market maker floor brokerage fee for both equity and index options transactions.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Amex proposes to eliminate transaction, clearance, and floor brokerage fees for customer equity options orders. The Exchange also proposes to increase the specialist and market maker floor brokerage fee for both equity and index options transactions. The proposed fee schedule would be applicable to options transactions effected on and after April 1, 2000.
The Amex currently imposes a transaction charge on options trades executed on the Exchange. The charges vary depending on whether the transaction involves an equity or index option and whether the transaction is executed for a member firm proprietary account, a specialist or market maker account, or a customer account. The Amex also imposes a charge for clearance of options trades and an options floor brokerage charge, which also depends upon the type of account for which the trade is executed. In addition, all three of charges—transaction, options clearance, and options floor brokerage—are subject to caps on the number of options contracts subject to the charges on a given day.
Current, for customer equity and index options transactions, the Amex does not charge a transaction fee for market and marketable limit orders of 30 contracts or less.
Under the revised fee schedule, the Exchange proposes to eliminate all transaction, clearance, and floor brokerage fees for customer equity options orders. Fees currently charged to customers for transactions in index options will remain unchanged. To offset the Exchange's elimination of transaction, clearance, and floor brokerage fees for customer equity options transactions, the Exchange proposes to raise certain fees charged to members. Specifically the Exchange proposes to increase the equity options transaction fee from $0.07 to $0.19 per contract side for member firm proprietary orders and from $0.08 to $0.17 per contract side for specialist and market maker orders. Transaction charges for broker-dealers facilitating customer equity options orders will remain unchanged at $0.07 per contract side.
Under the Exchange's proposal, options clearance fees for member firms, specialists, and market makers will remain unchanged at $0.04 per contract side. The Exchange proposes to increase the specialist and market marker options floor brokerage fee from $0.02 to $0.03 per contract side for both equity and index transactions.
The Exchange represents that customers will receive actual cost savings of approximately $17.5 million, based upon third quarter, 1999 annualized option contract volume.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act
The Amex does not believe that the proposed rule change will impose any burden on competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
The proposed rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act,
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying at the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to the File No. SR-Amex-00-15 and should be submitted by May 11, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
On July 16, 1999, the American Stock Exchange, Inc. (“Amex” or “Exchange”) submitted to the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Article II, Section 4(a) of the Amex Constitution currently requires that the Chairman of the Board also act as the CEO of the Exchange. The Chairman thus performs the standard functions of a Board Chairman, as well as being responsible to the Board for the management and administration of the affairs of the Exchange as CEO.
The Exchange proposes to amend Article II, Section 4(a) of the Constitution to eliminate the requirement that the Chairman also act as the CEO of the Exchange. Amex represents that the NASD's two other subsidiaries (the Nasdaq Stock Market and NASD Regulation), both have non-executive Chairmen. Amex believes that having a non-executive Chairman attend to the functions of a Chairman would allow the CEO to focus on the operations of the Exchange. Nevertheless, the proposal gives Amex the flexibility to choose to have two people fill the Chairman and CEO positions or to have the same person fill these two positions.
As a result of the amendment to Article II, Section 4(a) of the Constitution, Amex made a number of conforming changes to other provisions of the Constitution and rules. Before this proposal, Amex's rules generally did not make a distinction between whether the Chairman/CEO was serving in his capacity as the Chairman or the CEO and used the term “Chairman” for both of these functions. To allow for separate persons to serve as Chairman and CEO, Amex examined its rules and made a determination as to whether a particular function was normally handled by the Chairman or CEO. Based on this examination, Amex then changed the term “Chairman” to CEO when it determined that Chairman/CEO was acting in his capacity as the CEO. Amex had to make choices, however, when the function was properly performed by either the Chairman or the CEO. In addition, Article II, Section 3 (Chairman) and Article II, Section 4(a) (Chief Executive Officer), discussing the selection and authority of the Chairman and CEO respectively, have been appropriately rearranged. Other than splitting the Chairman and CEO roles and making the above-mentioned conforming changes, the Amex represents that there are no substantive changes being made.
The Commission finds that the proposed rule change is consistent with
The Commission believes that the proposal is consistent with the Act. In particular, Amex represented that splitting the Chairman/CEO functions will allow the CEO to focus on the operations of the Exchange. The Commission agrees and believes that the proposal should allow the CEO to devote more time to the day-to-day operations of the Exchange.
In approving this rule change, however, the Commission notes that the proposed language now permits the Chairman to be affiliated with a member of the Exchange if separate persons hold the Chairman and CEO positions. As the Commission stated in the order approving the International Securities Exchange LLS's application for registration as a national securities exchange, the affiliation of the Chairman with one of the Exchange's members implicates certain conflicts of interest, or at least gives the appearance of such conflicts.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
Nasdaq is filing a proposed rule change amending NASD Rule 7010 to extend Nasdaq's transaction credit pilot program for an additional six months for Tape A reports and to discontinue the pilot program for Tape B reports. Below is the text of the proposed rule change. Proposed new language is in italic; proposed deletions are in brackets.
(a)-(b) No Change.
(c)(1) No Change.
(2)
In its filing with the Commission, Nasdaq included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. Nasdaq has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq is proposing to extend, for an additional six months, its pilot program to provide a transaction credit
Nasdaq's transaction credit pilot program is intended to lower costs for Third Market Makers and their customers who execute trades in exchange-listed stocks through NASD members and Nasdaq facilities. The NASD believes that lowering the cost of trading increases competition among market centers trading listed securities. Continuation of the pilot will allow Nasdaq to continue to evaluate the efficacy of its revenue sharing model and continue to effectively compete for the retention of Third Market participants with other regional exchanges that have adopted similar revenue distribution methodologies.
Eligibility for transaction credits during the pilot's extension will be based upon concurrent quarterly trading activity in NYSE-listed securities. For example, a Third Market participant that recently entered the market for Tape A securities during the first quarter of 2000 and printed an average of 500 daily trades of Tape A securities during the time it is in the market, or that averaged 500 daily Tape A prints during the entire quarter, would be eligible to receive transaction credits based on its trades during the first quarter. As in the original pilot, only those NASD members who continue to average an appropriate daily execution level during the term of the pilot's extension would be eligible for transaction credits and thus able to receive a pro-rata portion of the 40% revenue calculation pools.
As before, a fully-qualifying NASD member's transaction credit will be determined by taking its percentage of total Third Market transactions during the applicable calculation period and providing an equivalent percentage from the appropriate Tape A calculation pool. Thus, for each calendar quarter commencing with the calendar quarter that began on January 1, 2000, the NASD will measure a qualified member's Tape A trade reports for that calendar and create a credit for the member based upon this activity. For example, if a qualifying NASD member's transactions represent 10% of the NASD's Tape A transactions, that member would receive a 10% share of the Tape A 40% calculation pool. Unlike the original pilot, however, the transaction credit will be available only to NASD members that trade NYSE-listed securities in the Third Market in order to focus the competitive thrust of this initiative toward the NYSE during the tme the NASD remains the sole shareholder of Nasdaq.
Nasdaq's transaction credit program is being proposed on a pilot basis only. There can be no guarantee that transaction credits will be available to qualifying NASD members beyond the term of the pilot.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 15A(b)(6) of the Act,
Nasdaq does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
Nasdaq did not solicit or receive written comments on the proposed rule change.
The proposed rule change has become immediately effective pursuant to Section 19(b)(3)(A)(ii) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, NW, Washington, DC 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filing will also be available for inspection and copying at the principal office of the NASD. All submissions should refer to the File No. SR-NASD-00-10 and should be submitted by May 11, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of amendments to Sections 102.01B, 102.01C, 103.01A, 103.01B, 802.01B and 802.01C of the
Market value of publicly-held shares (A)—$100 million Worldwide(B)
or for companies listing under the Affiliated Company standard—$60 million Worldwide(B)
Funds will be subject to immediate suspension and delisting procedures if (1) the average market capitalization over 30 consecutive trading days is below $15,000,000 or (2) the Fund ceases to maintain its closed-end status. The Exchange will notify the fund if the average market capitalization falls below $25,000,000 and advise the fund of the delisting standard. Funds are not subject to the procedures outlined in Paras. 802.02 and 802.03.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item III below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to add a new original listing standard and related continued listing standard to the Exchange's listing criteria.
According to the Exchange, companies in the current capital markets are employing strategies to “unlock value” in a portion of their business, particularly internet-related business. These include initial public offerings which spin-off or carve-out a subsidiary, as well as issuing “tracking stocks,”
Currently, all domestic companies listing on the Exchange must meet the distribution and minimum public market capitalization standards set forth in Sections 102.01A and 102.01B of the Manual, and Non-U.S. companies must meet the standards set forth in Section 103.01A. The Exchange notes that the pertinent sections of the Manual to this proposed rule change are Sections 102.01C and 103.01B, which set forth the financial criteria an applicant must meet. In applying the proposed Affiliated Company standard, therefore, applicants must comply with Sections 102.01A and 102.01B for domestic companies and Section 103.01A for Non-U.S. companies. The proposed changes to Sections 102.01C and 103.01B, which are identical, set forth four components as the minimum listing criteria for Affiliate Companies, including: (a) that the company have a market capitalization of $500 million or greater; (b) that the company have been in operation for a minimum of 12 months; (c) that the parent or affiliated company is a listed company in good standing; and (d) that the parent/affiliated company retains control of the entity or is under common control with the entity.
First, the Exchange proposes that the market capitalization of the Affiliated
Second, the Exchange proposes a maturation component that would require a minimum of twelve months of operations prior to the new listing. In this regard, the Exchange seeks to ensure that the entity is an appropriate candidate for the new standard by demonstrating operations for at least one year. The Exchange notes that there is no requirement that the entity be a separate corporate entity for such period, as it believes that such a construct is often not utilized by large corporations with multiple operating units.
Third, the proposed standard would require a two-part test with regard to the parent or affiliated company. First, it must be a listed company in good standing. The Exchange represents that in determining whether the parent/affiliate is in good standing, it will take into consideration the portion of the business that is becoming the new company. Specifically, in determining the stockholders' equity of the parent, the portion applicable to the new entity not retained by the parent/affiliate would be deducted. The Exchange will require written representation from the underwriter, company or its investment advisor, as applicable, in order to establish that the parent/affiliate will remain in good standing following he severance of the new entity. In adopting this approach, the Exchange seeks to prevent any double counting of the value of the new entity during the listing process. Second, the parent/affiliate must retain a certain amount of control (or be under common control). The Exchange believes the appropriate threshold at which to set a presumption of control is 20%. The Exchange will evaluate all inter-locking elements between the parent and the new entity in making the determination of whether sufficient control is retained such that the Affiliated Company standard is appropriate.
In addition to the proposed initial listing standard, the Exchange is proposing two changes to its continued listings standards. To maintain listing on the Exchange, companies must exceed a conjunctive test of at least both $50 million in market capitalization and $50 million in shareholders' equity, and a stand-along market capitalization minimum of at least $15 million. With respect to companies listed under the proposed Affiliated Company standard, the conjunctive test in Section 802.01B of the Manual would only be applied in the event that the parent/affiliated company no longer controls the entity or the parent/affiliated company itself fell below the continued listing standard. In this regard, the Exchange believes that, so long as the parent is in good financial standing and control is maintained, the new entity should be subject only to the minimum standard of $15 million in market capitalization.
The second proposed change to the continued listing standards pertains to Section 802.01C of the Manual. This section imposes a $1 Price Criteria, so that a security for which the stock price has fallen below $1 would be considered by the Exchange to be below continued listing standards. Again, the Exchange believes that, so long as the control elements continue to be in place, the application of the Price Criteria may not necessarily be appropriate. In this regard, the Exchange will evaluate the financial status of both the new company and the parent/affiliated company.
The Exchange represents that the proposed rule change is consistent with the requirement under Section 6(b)(5) of the Act;
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange solicited comments from its Legal Advisory Committee and Listed Company Advisory Committee. All comments received from the two Committees were in support of the proposed amendments.
In response to this commenter, the Exchange stated that it will address the issue of fees separately, and noted that most divisions that evolve into separate entities are segregated with a management structure in place in the particular division.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street N.W., Washington, D.C. 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room. Copies of such filings will also be available for inspection and copying at the principal office of the NYSE. All submissions should refer to File No.
The Commission finds that the proposed rule change, as amended, is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange, and in particular, with the requirements of Section 6(b)(5),
Specifically, the Commission believes that the Exchange's proposed Affiliated Company listing standard and related continuing listing standard will permit the Exchange, without compromising the effectiveness of the Exchange's listing standards, to retain the listings of its issuer's carve-outs, spin-offs or “tracking stocks” that meet the requirements of the Affiliated Company standard. The Commission further believes that the proposed rule change, as amended, is consistent with the Exchange's obligation to remove impediments to and perfect the mechanism of a free and open market by providing the NYSE with greater flexibility in determining which equity securities warrant inclusion in its market. As such, the proposal should allow the Exchange to add listings based on the prospective entity's relationship with an NYSE listed company in good standing that otherwise might not qualify under its current original listing criteria.
The NYSE has requested that the Commission find good cause for approving the proposed rule change, as amended, prior to the thirtieth day after the date of publication of notice in the
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The proposed rule change consists of amendments to the Exchange's
• If the Exchange staff should determine that a security be removed from the list, it will so notify the issuer in writing, describing the basis for such decision and the specific policy or criterion under which such action is to be taken.
•
• If the issuer does not request a
• If a
• Any brief or memorandum dealing with the issuer's or the Exchange [S]
•
•
Where a company falls below the criteria for continued listing, the Exchange will permit the company, by action of its Board of Directors, to voluntarily transfer its listing, and/or its principal market to another national securities exchange and cooperate with the company and the other exchange in order to avoid any interruption in trading.
Rule 499 Securities admitted to the list may be suspended from dealings or removed from the list at any time.
a. If [New Listings and Corporation Liaison]
b. If the issuer does not request a
c. If a
d. Any brief or memorandum dealing with the issuer's or [New Listings and Corporate Liaison]
[e. At the hearing, the issuer and New Listings and Corporate Liaison must prove their respective cases by presenting testimony, evidence, and argument to the Committee. Both parties may present any witnesses they wish and all those witnesses and parties who testify are subject to cross examination by the opposing side and questioning from the members of the Committee. The form and manner in which the actual hearing will be conducted will be established by the Committee so as to assure the orderly conduct of the proceeding. At the hearing, the Committee may require the parties to furnish additional written information which has come to its attention.]
f.
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to modify the Exchange's procedures with regard to (1) delisting a security and (2) the issuer's appeal. This proposed rule change both streamlines the appeal process and ensures notification to the public when the Exchange staff determines a security warrants the implementation of suspension and delisting procedures.
The Exchange has found that too much time sometimes elapses between identification of a company as not meeting the continued listing requirements and the suspension of its securities from trading, as well as between the suspension from trading of a security and the Exchange's subsequent application to the Commission to delist the security. In addition, the Board Committee that hears appeals of companies which have been suspended, has expressed concern that the delisting decision has often already been made and their oversight is more a review of staff decisions as opposed to consideration of an appeal by the company. The Exchange believes that it has already tightened its procedures regarding monitoring and delisting of companies falling below the Exchange's continued listing criteria in a filing that was approved by the Commission on June 9, 1999.
The Exchange also has determined that investors should be promptly informed if a company is identified as one that warrants commencement of suspension and delisting procedures. Thus, simultaneously with providing the company with notice and an opportunity to appeal, the Exchange proposes to issue a press release disclosing the status of the company and the rationale for the determination. The Exchange also proposes to append an identifier suffix to ticker symbols of securities that have been determined by Exchange staff as warranting suspension and delisting. Finally, in a change that both addresses the timing issue and responds to the anomaly of hearing an issuer's listing appeal
Specifically, with regard to the changes to the appeal process and the implementation of a press release requirement, the Exchange proposes to amend the Manual and NYSE Rule 499 as follows:
1. Implement a press release process triggered by a staff decision to suspend and delist security;
2. Clarify that a request for appeal would stay the suspension unless the staff determines that a stay is contrary to the interest of the public and investors;
3. Specify that issuers can request before the Committee for Review and that the Committee may grant or deny such request, provided that an explicit rationale for a denial is provided.
4. Shorten the time periods relating to the appeal process such that (a) the issuer must notify the Exchange of its intent to appeal within ten business days of receiving notice that the Exchange staff has determined that its security should be delisted and (b) written submissions must be served within seventeen business days from the date the issuer received notice of its right to review,
5. Clarify that counterparty service is the responsibility of each party (not the Office of the General Counsel) and that
With regard to the identifier suffix, the Exchange proposes to amend the Manual in two sections. First, Para. 804 would be amended to specify that once Exchange staff determines that a security should be removed from the list, the Exchange would not only issue the current requisite press release, but also would begin appending the identifier suffix to the security's ticker symbol to indicate that is has commenced proceedings to suspend and delist the security. Second, Para. 807 would be amended to specify that during a transition to another market, the identifier suffix would be appended.
The Exchange believes that the basis under the Act for the proposed rule change is the requirement under section 6(b)(5)
The Exchange does not believe that the proposed rule change would impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act.
The Exchange has neither solicited nor received written comments on the proposed rule change.
Within 35 days of the date of publication of this notice in the
(A) by order approve the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change, as amended, is consistent with the Act. Persons making written submissions should file six copies thereof with the Secretary, Securities and Exchange Commission, 450 Fifth Street, N.W., Washington, D.C. 20549-0609. Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for inspection and copying in the Commission's Public Reference Room in Washington, D.C. Copies of such filing will also be available for inspection and copying at the principal office of the Exchange. All submissions should refer to SR-NYSE-99-30 and should be submitted by May 11, 2000.
For the Commission, by the Division of Market Regulation, pursuant to delegated authority.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Small Business Administration's intentions to request approval on a new, and/or currently approved information collection.
Submit comments on or before June 19, 2000.
Send all comments regarding whether this information collection is necessary for the proper performance of the function of the agency, whether the burden estimate is accurate, and if there are ways to minimize the estimated burden and enhance the quality of the collection, to Kenneth D. Simonson, Senior Economic Advisor, Office of Advocacy, Small Business Administration, 409 3rd Street, SW, Suite 7800, Washington, DC 20416.
Kenneth D. Simonson, Senior Economic Advisor, 202-205-6973 or Curtis B. Rich, Management Analyst, 202-205-7030.
Coast Guard, DOT.
Notice of meeting; Change of location.
The location of the Coast Guard Commercial Fishing Vessel Safety Action Plan Listening Session, on Saturday, May 20, 2000, from 10 a.m. to 2 p.m. has been changed. The meeting has been moved from the Italian American Club, 1903 Cabrillo Avenue, San Pedro, California to Canetti's Seafood Grotto, 309 East 22nd Street, San Pedro, California.
For questions on this notice, contact Lieutenant Jennifer Williams, or Ensign Chris O'Neal, telephone 202-267-2008, fax 202-267-0506.
Original notice of this meeting was published in the
Maritime Administration, DOT.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before May 22, 2000.
John T. Marquez, Jr., Office of the Chief Counsel, Maritime Administration, 400 Seventh Street, SW, Room 7228, Washington, DC 20590, telephone number 202-366-5320. Copies of this collection can also be obtained from that office.
Maritime Administration.
The information collection is necessary for MARAD to determine that a given vessel is owned and controlled by Citizens of the United States in accordance with the requirements of the AFA and, therefore, is eligible to be documented with a fishery endorsement to its documentation. The information may also be used to determine whether the vessel owner, charterer, processor or other entity has violated harvesting and processing caps imposed under section 210(e)(1) and (2) of the AFA, and whether there is a conflict with an international treaty or agreement that would result in an exemption from the requirements of the rule for a particular vessel owner or mortgagee.
Send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention MARAD Desk Officer.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington, DC 20220.
Written comments should be received on or before May 22, 2000 to be assured of consideration.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington, DC 20220.
Written comments should be received on or before May 22, 2000 to be assured of consideration.
The Department of Treasury has submitted the following public information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Copies of the submission(s) may be obtained by calling the Treasury Bureau Clearance Officer listed. Comments regarding this information collection should be addressed to the OMB reviewer listed and to the Treasury Department Clearance Officer, Department of the Treasury, Room 2110, 1425 New York Avenue, NW., Washington, DC 20220.
Written comments should be received on or before May 22, 2000 to be assured of consideration.
Department Offices, Treasury.
Notice of meeting.
This notice announces the date and time for the next meeting and the provisional agenda for consideration by the Committee.
The next meeting of the Treasury Advisory Committee on Commercial Operations of the U.S. Customs Service will be held on Friday, May 5, 2000 at 8:30 a.m. at the Seaport Hotel, One Seaport Lane, Boston, MA 02210, Tel.: (617) 385-4000 or 1-877-SEAPORT. The duration of the meeting will be approximately four hours.
Dennis M. O'Connell, Director, Office of Tariff and Trade Affairs, Office of the Under Secretary (Enforcement), Room 4004, Department of the Treasury, 1500 Pennsylvania Avenue, N.W., Washington, D.C. 20220. Tel.: (202) 622-0220. Final meeting details, including the meeting time, location, and agenda, can be confirmed by contacting the office indicated above one week prior to the meeting date.
At the May 5, 2000 session, the regular quarterly meeting of the Advisory Committee, the Committee is expected to pursue the following agenda. The agenda may be modified prior to the meeting.
The meeting is open to the public; however, participation in the Committee's deliberations is limited to Committee members and Customs and Treasury Department staff. A person other than an Advisory Committee member who wishes to attend the meeting should give advance notice by contacting Theresa Manning at (202) 622-0220, no later than April 28, 2000.
Internal Revenue Service, Treasury.
Notice of Proposed New Privacy Act System of Records.
The Treasury Department, Internal Revenue Service, gives notice of a proposed new system of records entitled “Criminal Investigation Audit Trail Records System—Treasury/IRS 46.051,” which is subject to the Privacy Act of 1974, 5 U.S.C. 552a. This proposed system has been developed to enable the Criminal Investigation Division to analyze computer system usage and identify potential security violations. It is further proposed to have the system exempt from meeting certain requirements of the Privacy Act of 1974.
Comments must be received no later than May 22, 2000. This new system of records will be effective May 30, 2000, unless comments are received which result in a contrary determination.
Comments should be sent to the Office of Governmental Liaison and Disclosure, Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC 20224. Comments will be made available for inspection and copying in the Freedom of Information Reading Room upon request.
Fu-An Chao, Chief, Systems Development and Support, Criminal Investigation, (202) 622-7803.
The Internal Revenue Service's Criminal Investigation Division seeks to establish and maintain the proposed new system of records as a more comprehensive means of performing its responsibilities.
Criminal Investigation carries out many law enforcement related functions. Among Criminal Investigation's principal responsibilities are investigating and referring for prosecution criminal cases, centering largely on violations of tax laws, including income tax evasion, refund fraud, and other crimes contributing to the federal tax gap. Criminal Investigation also investigates violations of certain money laundering laws.
Many of these law enforcement related functions have been automated and are available on Criminal Investigation computer systems. To ensure the integrity of the system data, audit records are maintained to identify all events that occur while users attempt to access or use the computer system or the applications. This system will identify the sequence of events that occurred while an individual is logged onto the system.
Due to the nature of information collected, the Criminal Investigation Audit Trail Records System will automatically identify law enforcement related information.
The Criminal Investigation Audit Trail Records System produces an output record that identifies user names, times logged into the system, and sequences of events which occurred, while logged into the system, or attempting to log onto the system, and investigatory files accessed. Once the output record is created, it is sent to the National Office for review. This enables the security staff to determine if any irregular activities or patterns are occurring. Individuals who are detected by the audit logs of irregular activities or patterns may be adversely affected up to and including prosecution for unauthorized access to government records.
The Internal Revenue Service is giving public notice of a proposed rule to exempt this system of records from certain provisions of 5 U.S.C. 552a pursuant to subsections (j)(2) and (k)(2). A proposed rule is being published separately in the
The new system of records report, as required by 5 U.S.C. 552a (r) of the Privacy Act, has been submitted to the Committee on Government Reform in the House of Representatives, the
The proposed IRS system of records, “Criminal Investigation Audit Trail Records System—Treasury /IRS 46.051,” is published in its entirety below.
Criminal Investigation Audit Trail Records System—Treasury /IRS 46.051
Records are located at the Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC 20224. Other locations of these records are: Automated Criminal Investigation Project Office, located in Florence, Kentucky; Internal Revenue Service Areas of Investigation, Criminal Investigation District Offices, and Internal Revenue Service Posts of Duty. (See IRS Appendix A for addresses.)
Individuals who use or attempt to use the IRS Criminal Investigation computer systems; log onto the Criminal Investigation system; use the Criminal Investigation applications; use the Criminal Investigation operating system, or log off the Criminal Investigation computer are covered by this system.
This is an electronic data base which captures system use information such as: date and time a user initiated or attempted to initiate a session on the system; date and time of all unsuccessful system accesses; date and time of data or system file accesses; date and time of privileged security actions on the system, and date and time of system logoff by a user.
Criminal Investigation application audit trail records may contain information regarding system or application access for any of the following Criminal Investigation files: CIMIS, 46.002; Confidential Informants, Criminal Investigation Division, 46.003; Electronic Surveillance File, 46.005; and Centralized Evaluation and Processing of Information Items, 46.009.
5 U.S.C. 301; 26 U.S.C. 6103, 7213, 7213A, 7214, 7602, 7608, 7801, and 7803; 18 U.S.C. 1030(a)(2)(B).
The Criminal Investigation Division of the Internal Revenue Service established this system to enable the division to monitor and analyze usage of its computer system. The system will provide information showing: (1) The system users; (2) the times of use for each user; (3) the areas of the system being accessed by each user; (4) unauthorized access by Criminal Investigation employees; and (5) access, or attempted access, by persons other than Criminal Investigation employees. System uses include reading, adding, deleting, and/or modifying data and system records.
Disclosure of records and information from this system may be disclosed only as provided by 26 U.S.C. 6103 and 18 U.S.C. 1030(a)(2)(B). Records other than returns and return information may be used:
(1) To disclose pertinent information to appropriate federal, state, local, or foreign agencies responsible for investigating or prosecuting the violation or potential violation of civil or criminal law or regulations.
(2) To disclose information in a proceeding before a court, adjudicative body, or other administrative body before which the agency is authorized to appear when: (a) The agency, or (b) any employee of the agency in his or her official capacity, or (c) any employee of the agency in his or her individual capacity where the Department of Justice or the agency has agreed to represent the employee, or (d) the United States, when the agency determines that litigation is likely to affect the agency, is a party to litigation or has an interest in such litigation, and the use of such records by the agency is deemed to be relevant and necessary to the litigation or administrative proceeding and not otherwise privileged.
(3) To provide information to a congressional office in response to an inquiry made at the request of the individual to whom the record pertains.
(4) To provide information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation.
(5) To provide information to unions recognized as exclusive bargaining representatives under the Civil Service Reform Act of 1978, 5 U.S.C. 7111 and 7114, the Merit Systems Protection Board, arbitrators, the Federal Labor Relations Authority, and other parties responsible for the administration of federal labor actions or grievances or conducting administrative hearings or appeals or if needed in the performance of other authorized duties.
(6) To disclose to the Department of Justice for the purpose of litigating an action or seeking legal advice.
(7) To disclose to a defendant in a criminal prosecution, the Department of Justice, or a court of competent jurisdiction where required in criminal discovery or by the Due Process Clause of the Constitution.
Electronic and magnetic media and paper.
Records are retrievable by user name.
Protection and control of any sensitive but unclassified information or records are in accordance with Department of the Treasury Security Manual, TD P 71-10 and Internal Revenue Manual, IRM 2.1.10, Automated Information System Security, and Internal Revenue Manual, IRM 1(16)00, Physical Security Handbook, as well as internal CI Policy. The Criminal Investigation Audit Trail Records System is contained in an operating system, which has been rated as C2 compliant. All system access is controlled with the use of passwords and only Criminal Investigation personnel who have been assigned a “need-to-know” can access system data. The computers that operate the System are in secure space, housed in a Federal Building with 24-hour security.
Records are maintained, administered and disposed of in accordance with Internal Revenue Manual (IRM) 1.15; 1.15.1 Records Administration Handbook, 1.15.2 Records Disposition Handbook, 1.15.3 General Records Handbook, and 1.15.4 Files Management Handbook.
The official prescribing policies and practices is the Assistant Commissioner, Criminal Investigation, Internal Revenue Service, 1111 Constitution Avenue, NW, Washington, DC, 20224. The
This system of records may not be accessed for purposes of determining if the system contains a record pertaining to a particular individual.
This system of records may not be accessed for purposes of inspection by an individual to determine if there exists a record pertaining to him or her, and/or to view the contents of the records.
26 U.S.C. 7852(e) prohibits Privacy Act amendment of tax records.
This system of records contains investigatory material compiled for law enforcement purposes whose sources need not be reported.
This system is exempt from 5 U.S.C. 552a(c)(3), (c)(4), (d)(1), (d)(2), (d)(3), (d)(4), (e)(1), (e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (e)(8), (f), and (g) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), and (k)(2).
The Department of Veterans Affairs (VA) gives notice under Public Law 92-463 that a meeting of the Advisory Committee on Prosthetics and Special-Disabilities Programs (Committee) will be held Monday and Tuesday, May 8-9, 2000, at VA Headquarters, Room 930, 810 Vermont Avenue, NW, Washington, D.C. The May 8 session will convene at 8:00 a.m. and adjourn at 4 p.m. and the May 9 session will convene at 8:00 a.m. and adjourn at 12:00 noon. The purpose of the Committee is to advise the Department on its prosthetic programs designed to provide state-of-the-art prosthetics and the associated rehabilitation research, development, and evaluation of such technology. The Committee also advises the Department on special disability programs which are defined as any program administered by the Secretary to serve veterans with spinal cord injury, blindness or vision impairment, loss of or loss of use of extremities, deafness or hearing impairment, or other serious incapacities in terms of daily life functions.
On the morning of May 8, the Committee will receive briefings by the National Program Directors of the Special-Disabilities Programs regarding the status of their activities over the last seven months. In the afternoon, a GAO representative will give a briefing on the GAO Draft Report regarding VA Health Care: Better Data and Accountability Needed For Care for Disabled Veterans. On the morning of May 9, the Committee will review the final draft report on implementation of the Veterans' Health Care Eligibility Reform Act of 1996 as it pertains to the legislative requirement to maintain capacity to meet specialized needs of disabled veterans. The Committee will have the opportunity to ask questions and provide input to the final draft report.
The meeting is open to the public. For those wishing to attend, contact Kathy Pessagno, Veterans Health Administration (113), phone (202) 273-8512, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, D.C. 20420, prior to May 5, 2000.
Under Section 10(d) of Public Law 92-463 (Federal Advisory Committee Act), notice is hereby given that the Annual Report of the Department of Veterans Affairs Special Medical Advisory Group for Fiscal Year 1999 has been issued.
The report summarizes activities of the Group relative to the care and treatment of disabled veterans and other matters pertinent to the Department of Veterans Affairs, Veterans Health Administration. It is available for public inspection at two locations:
By Direction of the Secretary.
In rule document 00-7275 beginning on page 15825 in the issue of Friday, March 24, 2000, make the following correction:
On page 15830, i § 8301.103(d)(2), in the first column, in the third line “(l)(1)” should read “(d)(1)”.
In notice document 00-6608, appearing on page 14637, in the issue of Friday, March 17, 2000, make the following correction:
On page 14637, in the second column, the docket number is corrected to read as set forth above.
Office of Management and Budget, Executive Office of the President.
Notice of solicitation of comments on the Economic Classification Policy Committee's recommendations for the 2002 revision of the North American Industry Classification System.
Under Title 44 U.S.C. 3504(e), the Office of Management and Budget (OMB) seeks public comment on the advisability of adopting the proposed North American Industry Classification System (NAICS) updates for 2002. OMB's Economic Classification Policy Committee (ECPC) recommends an update of the industry classification system to extend the harmonized three-country classification structure to construction and to recognize important changes in the retail trade and information sectors. In addition, as an interim measure in the United States, the ECPC recommends restructuring of the Wholesale Trade sector to reflect differences in production functions and to capture more accurately the rapidly-growing business-to-business electronic markets developing in the United States.
This notice: (1) Summarizes the background for the proposed revisions to NAICS 1997 in Part I; (2) contains a summary of public comments in Part II; (3) details the proposed structure changes agreed upon by the three countries in Part III; and (4) provides a comprehensive listing of proposed changes for national industries and their link to NAICS 1997 industries in Part IV.
OMB published a notification of intention to complete portions of NAICS in a February 25, 1999,
After considering all proposals from the public, consulting with a large number of U.S. data users and industry groups, and undertaking extensive discussions with Statistics Canada and Mexico's Instituto Nacional de Estadística, Geografía e Informática (INEGI), the ECPC, INEGI, and Statistics Canada developed a revised structure for both the Construction and Information sectors of NAICS that would apply to all three North American countries.
For Wholesale Trade, after extensive discussions with Statistics Canada and INEGI, the representatives of the three countries' statistical agencies decided to delay three-country changes to this sector and instead plan for a complete restructuring of the distribution network industries (wholesale, retail, transportation, and warehousing) in 2007. In the interim the ECPC recommends restructuring the Wholesale Trade sector to reflect differences in production functions between those wholesalers that take title to goods and those that do not, and to capture more accurately the rapidly-growing business-to-business electronic markets developing in the United States. The ECPC also developed proposed additional U.S. industry detail in the Retail Trade sector for NAICS United States. The ECPC recommends that NAICS United States 2002 incorporate these changes as shown in Parts III and IV.
Following an extensive process of development and discussions by the ECPC, with maximum possible public input, OMB seeks comment on the advisability of revising NAICS to incorporate the changes published in this notice. The modified NAICS would be employed in relevant data collections by all U.S. statistical agencies beginning with the reference year 2002. Statistics Canada and INEGI are recommending acceptance of the proposed revision of the NAICS system for industry classification in the statistical programs of their national systems and are seeking comments in their respective countries. Representatives of the three countries will hold further discussions to consider public comments that they receive.
To ensure consideration of comments on the adoption and implementation of the NAICS revisions detailed in this notice, comments must be in writing. You should submit them as soon as possible, but no later than June 19, 2000. This proposed revision to NAICS would become effective in the U.S. on January 1, 2002.
You should send correspondence about the adoption and implementation of NAICS revisions as shown in this
You should address inquiries about the content of industries or requests for electronic copies of the tables to: Carole Ambler, Chair, Economic Classification Policy Committee, Bureau of the Census, Room 2633-3, Washington, DC 20233, telephone number: (301) 457-2668, FAX number: (301) 457-1343.
You may send comments via E-mail to pbugg@omb.eop.gov with subject NAICS02. OMB will include in the official record comments received via E-mail at this address with this subject by the date specified above.
Paul Bugg, 10201 New Executive Office Building., Washington, DC 20503, E-mail address: pbugg@omb.eop.gov, telephone number: (202) 395-3093, FAX number: (202) 395-7245.
NAICS is a system for classifying establishments by type of economic activity. Its purposes are: (1) To facilitate the collection, tabulation, presentation, and analysis of data relating to establishments, and (2) to promote uniformity and comparability in the presentation and analysis of statistical data describing the economy. Federal statistical agencies use NAICS to collect or publish data by industry. It also is used widely by State agencies, trade associations, private businesses, and other organizations.
INEGI of Mexico, Statistics Canada, and the United States Office of Management and Budget (OMB), through its Economic Classification Policy Committee (ECPC), collaborated on NAICS to make the industrial statistics produced in the three countries comparable. NAICS is the first industry classification system developed in accordance with a single principle of aggregation, the principle that producing units that use similar production processes should be grouped together in the classification. NAICS also reflects in a much more explicit way the enormous changes in technology and in the growth and diversification of services that have
For the three countries, NAICS provides a consistent framework for the collection, tabulation, presentation, and analysis of industrial statistics used by government policy analysts, by academics and researchers, by the business community, and by the public. However, because of different national economic and institutional structures as well as limited resources and time for constructing the 1997 NAICS, the NAICS structure was not made entirely comparable at the individual industry level across all three countries at that time. The completion effort represented in this notice originally focused on the construction and wholesale trade sectors. In the 1997 NAICS these two sectors were comparable at the two-digit level for all three North American countries.
Throughout its development, NAICS has been guided by four principles:
(1) NAICS is erected on a production-oriented or supply-based conceptual framework. This means that producing units that use the same or similar production processes are grouped together in NAICS.
(2) NAICS gives special attention to developing production-oriented classifications for (a) new and emerging industries, (b) service industries in general, and (c) industries engaged in the production of advanced technologies.
(3) Time series continuity is maintained to the extent possible, given the need to reflect changes in the economy and proposals from data users. Adjustments will be required for sectors where the United States, Canada, and Mexico have incompatible industry classification definitions in order to produce a common industry system for all three North American countries.
(4) The system strives for compatibility with the two-digit level of the International Standard Industrial Classification of All Economic Activities (ISIC Rev. 3) of the United Nations.
The ECPC is committed to maintaining the principles of NAICS. For example, the proposed split in the national industry for department stores will separately identify two distinct and economically significant types of operations in the United States in accordance with principle 1. The ECPC is recommending the revisions for nonstore retailers and new Internet information businesses based on NAICS principle 2. The rapid growth of Internet companies and the lack of a structural method for identifying these emerging industries justify the additional NAICS and U.S. national detail. The current round of completion activities is limited in scope based on NAICS principle 3 regarding time series continuity. The ECPC believes that the narrow focus of the completion activities and the importance of Construction and Information to the economies of all three countries justify the resulting time series breaks. Users are encouraged to implement the most current structure of NAICS as it becomes available.
In response to the February 25, 1999,
Public proposals for individual industries from all three countries were considered for acceptance if the proposed industry was based on the production-oriented concept of the system. When a proposal was not accepted, it was usually because: (a) The resulting industry would have been too small in the U.S., (b) data indicated that the specialization ratio was low (the specialization ratio indicates the extent to which the establishments in a given industry concentrate on the activities that define the industry), or (c) the proposal did not meet the production-oriented criterion for forming an industry in NAICS.
The ECPC received a number of comments that suggested changes to NAICS that were not accepted. All of these suggestions were carefully considered. Some suggestions were modified at the request of the ECPC to better meet the objectives of NAICS. Other suggestions proposed products (rather than industries); these will be considered in the future development of a product system. Still other suggestions for change could not be justified on a production basis, or could not be implemented in statistical programs, for various reasons, and thus were not accepted. The ECPC is preparing individual responses to these suggestions, carefully explaining why they were not accepted.
Many of the twenty-two comments that related to the Construction sector requested changes or structures that were contradictory. For this reason alone, the ECPC was not able to implement all of the requested changes. Other comments requested detail that was not supported by specialization studies performed using 1997 Census of Construction data. A final constraint on the acceptability of proposals was the necessity for three-country comparability. A comment that was justified on a production function basis in the United States was not always supportable by either Canada or Mexico.
The proposed structure of the Construction Sector has limited three-country comparability. In most areas, the representatives of the three countries attained comparability at the five-digit level. The Specialty Trade Contractors subsector is comparable at the four-digit level. This was the result of a desire to allow U.S. agencies to develop separate residential and nonresidential data for Specialty Trade Contractors without creating special aggregations outside of the NAICS structure. Although separate residential and nonresidential specialty trade industries were not created because of production function considerations, the structure does allow for residential and nonresidential data collection by U.S. statistical agencies. The sixth digit of the structure is reserved for this purpose. This information can be derived from Census Bureau data in Economic Census years. The Bureau of Labor Statistics will provide this information in the Covered Employment and Wages Program when the NAICS 2002 changes are implemented.
A second major proposal in the Construction sector related to project delivery methods. In recent years, Federal and State procurement laws have been changed to allow design-build as an alternative to the traditional design-bid-build process for construction projects in the public arena. This project delivery method alternative to structuring the Construction sector was not accepted in the three-country negotiations for a variety of reasons. First, the design-build terminology is used differently by various practitioners. The variation in use and meaning will cause difficulties in classification and the development of homogeneous industry groupings without extremely detailed questionnaires. Such a level of detail is not practical. Next, while of growing importance in the United States and Canada, design-build is not so prominent in Mexico. Finally, a project delivery method structure would have greatly expanded the number of industries at the lowest level of the classification. The proposed structure has 31 detailed industries for the United
The majority of the comments received that related to Wholesale Trade requested a change in the previously agreed upon scope of the sector. After extensive discussions with Canada and Mexico, the representatives decided to recommend that the basic delineation between Wholesale Trade and Retail Trade should remain unchanged. Further, the representatives agreed to undertake a complete restructuring of the distribution network industries (wholesale, retail, transportation, and warehousing) in NAICS 2007. In the interim, the United States has restructured NAICS United States 1997, Sector 42, Wholesale Trade to more closely align with the existing treatment in Canada and Mexico. For the United States, the ECPC has created three new subsectors: 423, Merchant Wholesalers, Durable Goods; 424, Merchant Wholesalers, Nondurable Goods; and 425, Wholesale Electronic Markets and Agents and Brokers. These subsectors more clearly separate types of wholesale trade businesses and will lead to more homogeneous statistical data. The merchant wholesaler subsectors are characterized by establishments that take title to goods and play the role of principal in the buying and selling of goods. The Wholesale Electronic Markets and Agents and Brokers subsector is characterized by establishments that act on behalf of sellers or facilitate wholesale transactions but do not actually take title to the goods.
Wholesale trade is rapidly changing. Many traditional wholesale trade functions are being outsourced to storage, finance, logistics, or transportation specialists. In addition to these changes, the Internet has greatly expanded markets and supplier customer bases. In order to identify these changes to the extent possible, the ECPC recommends that subsector 425, Wholesale Electronic Markets and Agents and Brokers be split into two separate industries. The first would include the wholesale trade electronic markets while the second would include agents and brokers. The electronic markets provide guidance and assistance to both buyers and sellers. They also provide a unified, one stop, purchasing environment with common requirements across a large number of suppliers. The rapid growth of the business to business (B2B) electronic markets reflects the considerable efficiencies that can be obtained through the use of advanced technology. Separate identification of this rapidly growing activity will allow a more thorough and reflective analysis of wholesale trade in relation to the overall changes in distributive trades in 2007.
In addition to working on the sectors described in the February 25, 1999,
In addition to the changes listed above, the ECPC is proposing several minor changes to titles of NAICS industries that have no impact on the content of those industries. The ECPC recommends the following title changes: NAICS 32611, Unsupported Plastics Film, Sheet, and Bag Manufacturing, will be changed to Plastics Packaging Materials and Unlaminated Film and Sheet Manufacturing.
NAICS 326111, Unsupported Plastics Bag Manufacturing, will be changed to Plastics Bag Manufacturing.
NAICS 326112, Unsupported Plastics Packaging Film and Sheet Manufacturing, will be changed to Plastics Packaging Film and Sheet (including Laminated) Manufacturing.
NAICS 326113, Unsupported Plastics Film and Sheet (except Packaging) Manufacturing, will be changed to Unlaminated Plastics Film and Sheet (except Packaging) Manufacturing.
NAICS 32612, Plastics Pipe, Pipe Fitting, and Unsupported Profile Shape Manufacturing, will be changed to Plastics Pipe, Pipe Fitting, and Unlaminated Profile Shape Manufacturing.
NAICS 326121, Unsupported Plastics Profile Shape Manufacturing, will be changed to Unlaminated Plastics Profile Shape Manufacturing.
NAICS 326130, Laminated Plastics Plate, Sheet, and Shape Manufacturing, will be changed to Laminated Plastics Plate, Sheet (except Packaging), and Shape Manufacturing.
NAICS 444220, Nursery and Garden Centers, will be changed to Nursery, Garden Center, and Farm Supply Stores to describe more completely the content of the industry.
NAICS 452910, Warehouse Clubs and Superstores, will be changed to Warehouse Clubs and Supercenters. The term supercenter more adequately describes the content of the NAICS industry.
NAICS 561330, Employee Leasing Services, will be changed to Professional Employer Organizations to more closely reflect common industry terminology.
The United States is also taking this opportunity to create additional national level detail for department stores and nonstore retailers. These changes will create more meaningful, homogeneous industries for the United States. Department Stores, NAICS 45211, will be split into two new 6-digit industries: Department Stores (except Discount), NAICS 452111, and Discount Department Stores, NAICS 452112.
Electronic Shopping and Mail-Order Houses, NAICS 45411, will be split into three new 6-digit industries: Electronic Shopping, NAICS 454111; Electronic Auctions, NAICS 454112; and Mail-Order Houses, NAICS 454113. The proposed changes for electronic shopping acknowledge the rapid growth of these activities in the United States. The proposed industry for Electronic Shopping includes separate establishments engaged in primarily providing electronic shopping services. The structure and codes for these new industries are detailed in Part IV of this notice.
The standard approach to preserving time series continuity after classification revisions is to create linkages where the series break. This is accomplished by producing the data series using both the old and new classifications for a given period of transition. With the dual classifications of data, analysts can assess the full impact of the revision. Data producers then may measure the reallocation of the data at aggregate industry levels and develop a concordance between the old and new series for that given point in time. The concordance creates a crosswalk between the old and new classification systems. Statistical agencies in the U.S. are planning links between the 1997 NAICS and 2002 NAICS (with U.S. national detail).
Parts III and IV below present the ECPC's final recommendations for how United States statistical agencies would revise the affected sectors and industries in the 2002 NAICS classification system for the United States. The tables show the proposed 2002 hierarchy, including NAICS and U.S. national detail industries, and the proposed coding system in 2002 NAICS sequence, for the affected sectors and industries. Parts III and IV include all ECPC recommended changes to the structure based on public comment and discussions with INEGI and Statistics Canada.
This document represents the proposed agreement on the structure of the North American Industry Classification System (NAICS) for the construction sector. The detailed NAICS structure along with a brief description of the structure is attached (Attachments 1 and 2). Each country agrees to release a copy of the proposed NAICS structure to interested data users. Comments received will be shared among the countries and additional discussions will be held before a final decision on the structure is made. Each country may add additional detailed industries below the internationally agreed upon level of NAICS, as necessary to meet national needs, so long as this additional detail aggregates to an internationally agreed upon level in order to ensure full comparability among the three countries. This NAICS structure was presented and accepted at the NAICS Committee meeting held on November 30 through December 2, 1999, in Ottawa, Canada.
Representatives of the statistical agencies of Canada, Mexico, and the United States agree to a draft industrial classification for the Construction sector. The draft classification of the construction sector is divided into subsectors covering Construction of Buildings, Heavy and Civil Engineering Construction, and Specialty Trade Contractors. These subsectors are further subdivided into 10 four-digit industry groups and 12 five-digit industries.
Establishments in the Construction Sector erect buildings, perform heavy and civil engineering construction, and perform specialized construction trade activities. The classification distinguishes between establishments that are responsible for an entire building or building renovation project and those that perform specific functions during the erection of a building or building renovation project. A subsector is provided for each group. The classification further distinguishes all establishments performing civil engineering and heavy construction activities, whether the complete project or a portion of the project, in a third subsector.
In Construction of Buildings, the classification distinguishes between the
The classification makes no distinctions in the residential buildings industry group because of differences in the organization of construction establishments among the three countries. National level detail will provide specific information based on the type of structure (single family or multi-family), type of project (new structures or alterations and renovations of existing structures), or type of establishment (general contractor or operative builder) as appropriate in each country. Consideration was given to each of these breakouts but national differences in the operating characteristics of establishments prevented three-country level comparability. Establishments erecting nonresidential buildings are segregated into establishments erecting commercial and institutional buildings and establishments erecting industrial buildings and manufacturing plants. This NAICS industry level distinction recognizes the differences inherent in erecting the various types of buildings.
Establishments performing heavy construction are separated into four industry groups: Utility System Construction; Land Subdivision; Highway, Street, and Bridge Construction; and Other Heavy and Civil Engineering Construction. Industries in these groups are engaged in large-scale projects and have related production characteristics. Heavy and Civil Engineering Construction establishments can perform the work or subcontract the work to specialized establishments.
Establishments in the Utility System Construction industry group construct lines and related structures for utility systems. For example, Water and Sewer Line and Related Structures Construction establishments that construct pipelines, distribution lines, irrigation systems, water treatment plants, sewage treatment plants, and pumping stations are grouped together. This recognizes the fact that these buildings and structures are inter-related in a network environment and are not meaningfully separated based on the particular type of structure.
Land Subdivision is included in Heavy and Civil Engineering Construction because of the similarity of activities involved with land subdivision and the other industry groups. For example, improved subdivisions often require installation of basic utilities, roads, and similar improvements that are also included elsewhere in the Heavy and Civil Engineering Construction subsector. The production similarities for construction of highways, streets, and bridges justified the third industry group.
The fourth, residual, industry group includes other heavy and civil engineering construction. Examples include marine construction, such as the building of ports and harbors, and construction of dams for retaining water, flood control, or hydroelectric power generation purposes. Heavy and Civil Engineering Construction includes general contractors, design-builders, operative builders, and those specialty trade contractors whose activities generally only apply to the Heavy and Civil Engineering Construction subsector. The activities performed by the specialty trade contractors in this subsector are rarely performed elsewhere.
In Specialty Trade Contractors, NAICS recognizes the highly specialized nature of a large number of small construction establishments. These establishments concentrate on a particular construction activity or group of activities rather than accepting responsibility and risk for an entire project. This difference separates these establishments from the first two subsectors. Establishments in the Specialty Trade Contractors subsector usually act as subcontractors for the general contractors, operative builders, design-builders, and other establishments that assume the risk for an entire construction project that takes place in the Construction of Buildings subsector. In this capacity, they can perform work as subcontractors or work directly for owners. Specialty Trade Contractors also perform repair, renovation, and maintenance on various systems that fall within their specialty. The skills and equipment used by specialty trade contractors in this subsector have more general application than skills and equipment used by the specialty trade contractors included in Heavy and Civil Engineering Construction.
Climatic and geological differences within and among the three countries lead to different construction techniques and practices for various types of structures. While wood is a significant input for residential housing in the Northern United States and Canada, concrete and stone are more common in the Southwest United States and in Mexico. Concrete and stone do not require siding and various other protections that are required with wood sheathing. Geological instability results in different structural and foundation requirements. Climate conditions dictate more insulation in northern areas while less insulation is appropriate in drier and warmer climates. These conditions lead to differing size and importance of various industries throughout North America. Each subsector varies across geographic lines based on the availability of raw materials and the environmental conditions that dictate construction practices.
Most of the industries in the NAICS Construction Sector are contained in Division 45, Construction, of the International Standard Industrial Classification of All Economic Activities (ISIC, Revision 3) of the United Nations. There are, however, some differences between the two systems. Both NAICS and ISIC exclude preparation of oil and gas fields from Construction. NAICS includes construction management activities within each of the industries in the Construction Sector while ISIC classifies construction management activities in Division 74, Other Business Activities. NAICS includes land subdivision in Construction, while ISIC classifies land subdivision in Division 70, Real Estate Activities.
During the initial NAICS development effort, the three countries agreed to the boundary and scope of the Construction sector at the two-digit level. Each of the countries developed its own national structure at the three-, four-, five-, and six-digit levels. The changes discussed are identified as NAICS with a prefix of C for Canada, U for the United States, and M for Mexico for previous national detail and NAICS02 for the draft classification.
For Canada, CNAICS 23 was broken into two subsectors: CNAICS 231, Prime Contracting; and CNAICS 232, Trade Contracting. NAICS02 comprises three subsectors: 236, Construction of Buildings: 237, Heavy and Civil Engineering Construction; and 238, Specialty Trade Contractors.
CNAICS 23141, Construction Management, will be distributed throughout all of the new NAICS02 Construction industries.
Land Subdivision and Development, CNAICS 23111 will be moved from the subsector for Building Construction to NAICS02 23721 within the Heavy and Civil Engineering Construction subsector. This move reflects the similarity of the activities performed in the land subdivision industry and other industries in the Heavy and Civil Engineering Construction subsector.
The construction of structures, such as sewage treatment plants and water treatment plants will be moved from CNAICS 23139, Other Engineering Construction, to NAICS02 2371, Utility System Construction, and distributed to the proper industries within the industry group.
For Mexico, the NAICS02 structure is very similar to the MNAICS structure developed in 1997. While there were various minor reaggregations below the industry group level, the subsector levels remained largely unchanged.
MNAICS 236 contained one industry group, 2361 Buildings. NAICS02 now contains two industry groups: 2361, Residential Buildings; and 2632, Nonresidential Buildings.
MNAICS 237 was made up of two industry groups: 2371 Construction of Structures for Water, Electricity, Telecommunications, Petroleum, and Gas; and 2372, Construction of Urban Infrastructure and Transportation Systems. NAICS02 is divided into four industry groups: 2371, Utility Systems Construction; 2372, Land Subdivision; 2373, Highway, Street, and Bridge Construction; and 2379, Other Heavy and Civil Engineering Construction.
As is the case for Canada, MNAICS 23822, Supervision and Management of Construction projects will be distributed throughout the construction industries in NAICS02.
For the United States, the subsector structures for UNAICS and NAICS02 are very similar. Most changes occurred below the subsector level. Of particular note, UNAICS 23311, Land Subdivision and Land Development moved from the subsector for construction of buildings to NAICS02 237, Heavy and Civil Engineering Construction.
UNAICS 23499, All Other Heavy Construction, included water treatment plants, sewage treatment plants and similar buildings that are now included in NAICS02 2371, Utility System Construction.
At the national level, the United States has reinstituted an industry for operative residential builders that were not separately identified in UNAICS. This industry had existed in the US SIC. The United States also created a new national industry for residential remodeling establishments. In previous classifications, residential remodelers were classified together with new residential construction.
The classification meets the objectives for the North American Industry Classification System (NAICS). It includes industries that group establishments with similar production processes, that is, it applies the production-oriented economic concept. In the main, the hierarchical structure of the classification also follows the production concept.
The industries are highly specialized, and they are economically significant. Disruptions to time series are minimal. The classification achieves comparability at most five-digit levels for the three participating countries. All three countries agree on the detailed definitions of the industries.
Other objectives of the NAICS project are not as relevant in this area of the classification as in others. These objectives are the delineation of new and emerging industries, service industries, and industries engaged in the production of new technologies.
Representatives of the statistical agencies of Canada, Mexico, and the United States provisionally agree to a draft industrial classification for the Information sector. The draft classification of the Information sector is divided into subsectors covering Publishing Industries (except Internet); Motion Picture and Sound Recording Industries; Broadcasting (except Internet); Internet Publishing and Broadcasting; Telecommunications; Internet Service Providers, Web Search Portals and Data Processing; and Other Information Services. These subsectors are further subdivided into 16 four-digit industry groups and 30 five-digit industries.
The Information sector comprises establishments primarily engaged in (a) producing and distributing cultural information, (b) providing the means to transmit or distribute these products as well as data or communications, and (c) processing data.
Many of the industries in the NAICS Information sector are engaged in either producing and manipulating products protected by copyright law, or in distributing them (other than distribution by traditional wholesale and retail methods). Examples are traditional publishing industries, software publishing industries, and film and sound industries. Also included are broadcasting industries, telecommunication industries, and information access providers and processors that process and distribute information and provide access to facilities for transmission of information. Although many new industries have been created for this sector, most of the activities it contains have existed for some time. A new feature of the revised Information Sector is the inclusion of new industries for activities that have recently appeared in the economy due to the rapid expansion of the Internet. When NAICS was initially conceived, Internet service providers, web search portals, and other forms of Internet distribution of content were in their infancy. These activities are now separately identified in the classification.
The following paragraphs provide a brief description of the individual components of this sector.
The Publishing Industries (except Internet) subsector groups establishments engaged in the publishing of newspapers, periodicals, and books, as well as directory, mailing list, and software publishing. In general, publishers issue copies of works for which they possess copyright for sale to the general public, in one or more formats including traditional print form or in electronic copy such as diskette or CD-ROM. Publishers may publish works originally created by others for which they have obtained the rights, and/or works that they have created in-house.
In NAICS, publishing—the reporting, writing, editing, and other processes that are required to create an edition of a newspaper, for example—is treated as a major economic activity in its own right, and classified in the Information sector, whereas printing remains in the NAICS Manufacturing sector. In part, the NAICS classification reflects the fact that publishing increasingly takes place in establishments that are physically separate from the associated printing establishments. More crucially, the NAICS classification of book and newspaper publishing is intended to portray their roles in a modern economy, where they do not resemble manufacturing activities.
Software publishing is included here because the activity—creation of a copyrighted product and bringing it to market—is equivalent to the creation process for other types of intellectual products. Reproduction of pre-packaged software is treated in NAICS as a manufacturing activity and custom design of software to client specifications remains in Professional, Scientific, and Technical Services. These distinctions arise because of the different ways that software is created, reproduced, and distributed. The only change to this subsector for 2002 is the new title for Industry 51114 that has been renamed from Database and Directory Publishers to Directory and Mailing List Publishers. This new title and an updated definition better describe the activities included in this industry.
The Motion Picture and Sound Recording Industries subsector groups establishments involved in producing and distributing motion pictures and sound recordings (those involved exclusively in the wholesaling of sound recordings are classified in Wholesale Trade). While motion picture and sound recordings are also “published,” the processes involved are sufficiently different from those traditional publishing industries to warrant placing them in the Motion Picture and Sound Recording Industries subsector.
The production and distribution of these products involves a complex process and several distinct industries. The Motion Picture and Video Industries industry group includes separate industries for Motion Picture and Video Production, Motion Picture and Video Distribution, Motion Picture and Video Exhibition, Postproduction Services, and Other Motion Picture and Video Industries. The distribution industry includes establishments primarily engaged in acquiring the distribution rights (major input) for films and programs, and charging such clients as movie theaters and broadcasters to show them; those engaged in wholesaling videos to retail stores and rental outlets are classified in Wholesale Trade. The Sound Recording Industries industry group contains classes for Record Production Companies, Integrated Record Production/Distribution, Music Publishers, Sound Recording Studios, and Other Sound Recording Industries.
Record production companies are primarily engaged in searching out, identifying and contracting artists for whom they arrange and finance the production of master tapes for which they hold the reproduction rights. Establishments in this industry do not own duplication facilities or have distribution capabilities, so they commercialize these rights through leasing/licensing agreements with third parties. Integrated record production companies (major record labels) integrate the production, manufacturing and/or distribution functions, commercializing reproduction rights through these vertically integrated operations. While establishments engaged in record production derive most of their revenues from leasing/licensing the reproduction rights of master recordings and from mechanical royalties, integrated record companies derive most of their revenues from the exploitation of their rights to distribute duplicate sound recordings. No changes were made to this subsector for 2002.
In NAICS 2002, Telecommunications and Broadcasting are split into separate subsectors. This structural change acknowledges that the production and distribution of information or cultural content is significantly different from the creation of the infrastructure used in distribution.
The new Broadcasting (except Internet) subsector, NAICS 515, distinguishes between radio broadcasting, television broadcasting, and cable and other subscription programming. These industry groups are based on differences in the methods of communication and in the nature of services provided. Broadcasting (except Internet) includes establishments that operate broadcasting studios and facilities for over the air, cable, or satellite delivery of audio and video programming such as music, entertainment, news, talk, and the like. These establishments are often engaged in producing and purchasing programs and generating revenues from the sale of time to advertisers, and from donations, subsidies, and/or the sale of programs. Cable and Other Subscription Programming establishments operate studios and facilities for the broadcasting of programs that are typically narrow cast in nature (limited format such as news, sports, education, and youth-oriented programming). The services of these establishments are typically sold on a subscription or fee basis.
NAICS 2002 recognizes for the first time the significant differences between traditional publishing and broadcasting and similar activities using the Internet in a new subsector for Internet Publishing and Broadcasting, NAICS 516. The unique combination of text, audio, video, and interactive features present in informational or cultural products on the Internet justifies the creation of the new subsector. NAICS separates Internet Publishing and Broadcasting in order to identify and statistically characterize this area of rapid growth in the economies of the three North American partners in NAICS.
The new Telecommunications subsector, NAICS 517, is primarily engaged in operating, maintaining, and/or providing access to facilities for transmitting voice, data, text, sound, and full motion picture video between network termination points. In contrast to the Broadcasting subsector, the Telecommunications subsector generally does not produce information or cultural content. Telecommunications includes groupings and industries based on the technologies used. As such, there are separate industry groups for Wired Telecommunications Carriers, Wireless Telecommunications Carriers (except Satellite), Telecommunications Resellers, Satellite Telecommunications, Cable and Other Program Distribution, and Other Telecommunications. All of these industry groups, except Telecommunications Resellers, operate transmission facilities that may be based on a single technology or a combination of technologies. The Cable and Other Program Distribution industry group includes establishments that operate cable systems, direct-to-home satellite systems, or other similar systems.
Another new subsector in NAICS groups establishments that provide Internet access; Internet search services; and data processing, hosting, and related services. The Internet Service Providers, Web Search Portals, and Data Processing Services subsector, NAICS 518, is subdivided into two industry groups. The Internet Service Providers and Web Search Portals industry group includes establishments that provide access to the Internet or provide the means to search for information on the Internet. The Data Processing, Hosting, and Related Services industry group includes establishments that process data for others. Mainframe computer time-share facilities and web hosting establishments are included with Data Processing, Hosting, and Related Services.
The final subsector, Other Information Services, NAICS 519, provides a classification for other information providers, such as news syndicates, as well as repositories of information products in the form of libraries and archives. Libraries and archives provide access to information products stored in their physical facilities. Museums, however, are classified in sector 71, Arts, Entertainment, and Recreation.
Representatives of the statistical agencies of Canada, Mexico, and the United States conducted extensive discussions on the content and conceptual structuring of industries for wholesale trade of goods. Due to the complexity of this dynamic sector and structural differences among the three countries, no additional three-country comparability was obtained for wholesale trade. Canada, Mexico, and the United States agree on the overall content of Wholesale Trade but will retain unique national industry detail within the sector. However, the United States has taken the insights gained from these discussions and incorporated them into a new national structure for Wholesale Trade.
As in the 1997 NAICS United States there are two main types of wholesalers included in Wholesale Trade for the 2002 NAICS United States: those that sell goods on their own account and those that arrange sales and purchases for others for a commission or fee.
(1) Establishments that sell goods on their own account are known as wholesale merchants, distributors, jobbers, drop shippers, import/export merchants, and sales branches. These establishments typically take title to the goods being sold and maintain their own warehouse, where they receive and
(2) Establishments arranging for the purchase or sale of goods owned by others or the purchase of goods on a commission basis are known as agents and brokers, commission merchants, import/export agents and brokers, auction companies, and manufacturer's representatives. These establishments do not take title to the goods being sold. Throughout this notice, these establishments are referred to as business to business electronic markets and agents and brokers.
Sector 42, Wholesale Trade, would be divided into three subsectors in the United States: subsector 423, Merchant Wholesalers, Durable Goods; subsector 424, Merchant Wholesalers, Nondurable Goods; and subsector 425, Wholesale Electronic Markets and Agents and Brokers. Each of these subsectors is further divided into industry groups and industries to meet the detailed needs of the U.S. statistical community.
Subsector 423, Merchant Wholesalers, Durable Goods, is split into nine industry groups that follow the structure of NAICS 1997. These industry groups are further divided into thirty-seven national level industries. The key difference between the content of subsector 421, Wholesale Trade, Durable Goods in 1997 and subsector 423, Merchant Wholesalers, Durable Goods, is the exclusion of electronic markets, and agents, brokers, and other intermediaries that do not take title to the goods being sold in subsector 423. Merchant wholesalers in NAICS 2002 are defined to include those establishments that buy or sell goods on their own account. Included are wholesale merchants, distributors, jobbers, drop shippers, import/export merchants, and manufacturer's sales branches. The key characteristic of wholesale establishments included in subsector 423 is ownership of the goods that are being sold.
Subsector 424, Merchant Wholesalers, Nondurable Goods, mirrors the structure of NAICS 1997 subsector 422, Wholesale Trade, Nondurable Goods. Again, the significant difference is the exclusion of electronic markets, and agents and brokers and other intermediaries that do not take title to the goods being sold. Subsector 424 is split into nine industry groups that are further divided into thirty-two national level industries classifying merchant wholesalers of nondurable goods.
Subsector 425, Wholesale Electronic Markets and Agents and Brokers is a new subsector for NAICS United States 2002. Establishments in the Wholesale Electronic Markets and Agents and Brokers subsector arrange for the sale of goods owned by others on a fee or commission basis. These establishments, unlike those in subsectors 423, do not take title to the goods being sold. They are acting on behalf of the buyers and sellers of goods.
This subsector is being created to classify agents and brokers as well as electronic markets that facilitate wholesale trade. Over the past two years, the explosive growth of wholesale trade on the Internet has radically changed the role of agents and brokers and greatly expanded potential markets for suppliers. While a wholesale trade business was previously constrained by geography and the cost of initiating contact with potential customers, the Internet has created inexpensive, efficient national markets for suppliers. The United States proposal for subsector 425, therefore, creates a new national industry for these electronic markets in wholesale trade, separate from the more traditional agents and brokers. The outsourcing of storage, transportation, finance, and other traditional wholesale trade functions is immensely eased with the advent of these new national electronic wholesale markets. In order to gather data to better understand these changes in the context of all distributive trade industries, they will be separately identified and categorized in NAICS United States 2002.
NAICS United States 1997 included 69 separate national industries in Wholesale Trade. NAICS United States 2002, includes 71 national industries in Wholesale Trade. With the addition of only two national industries, the restructuring of Wholesale Trade creates more homogeneous statistical data for users, eases the burden of code assignment for sales representatives and wholesale trade brokers, and separately identifies emerging trends for study and analysis. Although additional international comparability was not obtained, the changes to Sector 42, Wholesale Trade, in the United States represent a major improvement in the statistics generated for wholesale trade using NAICS. These changes also position the United States to measure and analyze more completely all distributive trade industries during future NAICS revisions.
The entire proposed structure for Wholesale Trade is detailed in Part IV of this notice.
For FY 2000 the competition for new awards focuses on projects designed to meet the priorities identified in the PRIORITIES section of this application notice.
The Department is not bound by any estimates in this notice.
This research grant competition combines elements of both research and evaluation of comprehensive school reform. The Office of Educational Research and Improvement (OERI) expects that the knowledge gained from this work will provide the field with findings about specific models in promoting student achievement and enhance our understanding of how model developers and staff in schools can more effectively work together to improve student achievement. In addition, it should contribute to our overall understanding of how to increase student achievement and our continuing efforts to refine and improve education reform strategies.
Currently, very few comprehensive school reform models have been rigorously evaluated to determine their effectiveness. States, districts, schools, and the research community all would greatly benefit from additional rigorous evaluation of the various models. Equally important is additional information about how various model characteristics (
This work should build on the growing awareness that comprehensive school reform as a strategy for improved student achievement will depend not only on the model being implemented, but also on the context and conditions that exist in classrooms, schools, and districts. What works or does not work in a classroom, school or district can be a function of a variety of factors and supporting conditions such as financial resources, teacher quality, district and school-level leadership, and collaborative strategies employed by model developers, districts, schools, and external technical assistance providers. In addition, the success or effectiveness of a model may be related to the needs of special populations including limited English proficient students or special education students.
OERI seeks rigorous research and evaluation designs that focus explicitly on comprehensive school reform's role in increasing student learning and achievement. The studies must contribute in a significant and cumulative way to extant research on comprehensive school reform; and produce findings that are sound, relevant, timely, and useful to practitioners and policymakers. Applicants should demonstrate understanding of research in progress, as well as plans for evaluations of this research. Research questions should be informed by the needs of practitioners and policymakers involved in comprehensive school reform initiatives and should be framed in ways that are likely to increase the utility of the findings ultimately produced. In addition, study designs should include mechanisms to share emerging findings with the field, as appropriate. The designs should also enable other interested researchers to conduct further data analyses, replication, verification and refinement of findings, and improvement of measurement procedures.
We encourage collaboration in the conduct of research. Proposal teams should reflect synergistic collaborations among model developers, researchers, practitioners, and others likely to produce relevant and actionable findings for educators and policymakers. We encourage research organizations to collaborate with groups and institutions historically underrepresented in education research, such as Historically Black Colleges and Universities, Hispanic-Serving Institutions, and Tribal Colleges and Universities.
OERI cautions that this research grant program is not intended to support model development or improvement efforts in individual schools or districts, but rather to support research efforts resulting in findings that apply to comprehensive school reform strategies for many schools in various communities, districts and states.
OERI anticipates that research designed to address one or more of these priorities may require large studies. For some projects, such as large-scale longitudinal studies, closer relationships with grantees than those typically afforded by discretionary grants may be appropriate. OERI therefore expects that some studies will be awarded cooperative agreements
OERI is interested in conducting research about the capacity of already developed comprehensive school reform models to increase student achievement in large numbers of schools outside the original development and field test sites. As previously noted, we will not fund the development of models or provide support simply to implement and/or evaluate a specific program in a specific site.
For purposes of this competition, an externally developed, research-based comprehensive school reform model is defined as follows: (1) It includes an integrated set of supportive materials, frameworks or guidelines, and the capacity to provide implementation assistance to schools. (2) It supports all systems within a school—organization, instruction, professional development, and management. (3) All of the school's classrooms are actively engaged in and accountable for the implementation of a common, articulated strategy to improve teaching and learning for all students in the school. (4) The components are grounded in research on effective practice. (5) It has been developed and tested in one set of schools and has demonstrated capacity to serve other schools. (6) There is some evidence of the effectiveness of the model in increasing student achievement.
OERI has identified three research questions as being critical to understanding the full dimensions of the large-scale implementation of externally developed research-based comprehensive school reform models as a strategy for increasing student achievement. This competition focuses on research projects designed to meet the following absolute priority:
Conduct studies that address one or more of the following research questions:
(1) How effective are specific externally developed, research-based comprehensive school reform models in improving the achievement of all students?
(2) How are model characteristics related to success of model implementation and improvement in teaching and learning in specific types of settings and with specific types of students?
(3) What supporting conditions and strategies are necessary to effectively implement and sustain comprehensive school reform models in schools and school districts?
Under 34 CFR 75.105(c)(3) we consider only applications that meet this priority.
The Secretary gives competitive preference priority to applications that address research question (1) under the absolute priority, in addition to addressing one or both of the other research questions in a coherent and integrated design. OERI considers research question (1) to be central to the proposed work. OERI believes studies designed to address question (1), and one or both of the other research questions will increase the rigor and robustness of school reform research and evaluation. In addition, study designs that link elements of research questions (2) and/or (3) with research question (1) will be more useful to model developers, policymakers, and practitioners.
Under 34 CFR 75.105(c)(2)(ii), OERI will select an application that meets the competitive priority over an application of comparable merit that does not meet the priority.
A principal investigator may submit only one proposal and may collaborate in one other proposal as a co-investigator. Group and collaborative proposals involving more than one institution must be submitted as a single administrative package from one of the institutions involved. Principal investigators will be required to meet at least twice each year with agency staff, consultants, and other OERI grantees and contractors for the purpose of expanding collaborative efforts within this field of research. OERI anticipates the possibility of funding two or more proposals that address the same or similar themes, topics or issues. OERI provides opportunities for grantees to inform each other's work by discussing common challenges, methodological issues, and ways to maximize the impact of this program on student achievement for all students. Principal investigators will also be required to help identify crosscutting research issues, and to work together to better inform other researchers, practitioners, and policymakers of emerging findings.
Depending upon the type of research proposed, OERI might require some common study design elements. Investigators may be asked to develop a core of common research questions, outcome measures, instruments, or data analysis procedures so that study findings are comparable.
In accordance with the Administrative Procedure Act (5 U.S.C. 553), it is the practice of the Department to offer interested parties the opportunity to comment on proposed priorities that are not taken directly from statute. Ordinarily, this practice would have applied to the priorities in this notice. Section 437(d)(1) of the General Education Provisions Act (GEPA), 20 U.S.C. l232(d)(1), however, exempts rules that apply to the first competition under a new or substantially revised program from this requirement.
The conference agreement for the FY 2000 appropriation for OERI's national research institutes includes $20,000,000 for “current and expanded comprehensive school reform research and development.” (P.L. 106-113, the Department of Education Appropriations Act, 2000.) Of that sum, approximately $15 million will support continuation of the current activities (contracts resulting from the FY 1999 design competition for new models for comprehensive school reform at the middle and high school level). An estimated $5 million will be used for the discretionary grants or cooperative agreements that are the subject matter of this competition. This expanded program of research and development will focus on studies addressing the student achievement effects of various comprehensive school reform models.
Therefore, the Assistant Secretary of OERI, in accordance with section 437(d)(1) of GEPA, to ensure timely awards, has decided to forego public comment with respect to the priorities. The priorities will apply only to the FY 2000 grant competition.
You may also contact ED Pubs at its Web site:
If you request an application from ED Pubs, be sure to identify this competition as follows: CFDA Number 84.306S.
Cheryl Kane, U.S. Department of Education, 555 New Jersey Avenue, NW., room 604B, Washington, DC 20202-5530. Telephone: (202) 208-2991. E-mail: cheryl kane@ed.gov or D. Hollinger Martinez, U.S. Department of Education, 555 New Jersey Ave, NW., room 610C, Washington, DC 20208-5521. Telephone: (202) 219-2239. E-mail: debra_hollinger_martinez@ed.gov. If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
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20 U.S.C. 6031.
Office of Public and Indian Housing, HUD.
Proposed rule.
This proposed rule would revise the way construction costs are controlled in the Indian Housing Block Grant (IHBG) program administered by IHBG grantees, who are Indian Tribes or their Tribally Designated Housing Entities (TDHEs). It would replace the system of HUD-established Dwelling Construction and Equipment costs with a choice between HUD-established Total Development Costs or standards established by the TDHE based on standards in its geographic area. This rule also would provide that the construction, acquisition, or assistance of non-dwelling buildings is either subject to standards established by the TDHE or to documentation of comparability to the size, design and amenities of similar buildings constructed in the geographic area.
Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street, SW, Washington, DC 20410-0500. Communications should refer to the above docket number and title. Facsimile (FAX) comments are not acceptable. A copy of each communication submitted will be available for public inspection and copying between 7:30 a.m. and 5:30 p.m. weekdays at the above address.
Bruce Knott, Office of Native American Programs, at 303-675-1600, extension 3302, or email him at the following address: Bruce_A._Knott@hud.gov. Persons with hearing or speech impairments may access the above telephone number via TTY by calling the Federal Information Relay Service at 1-800-877-8339.
Under the United States Housing Act of 1937 (“1937 Act”) (42 U.S.C. 1437
Under the Native American Housing Assistance and Self-Determination Act (NAHASDA)(25 U.S.C. 4101
In response to these new concerns, the National Office of Native American Programs (NONAP) began working with a tribal consulting group on the cost limit issue in the fall of 1998. This group was comprised of a tribal representative from each of the ONAP office jurisdictions, one HUD field staff person, and two HUD Headquarters staff. Their objective was to write language that incorporated both the self determination and affordable housing intentions of NAHASDA. This group wrote proposed changes for dwelling cost limits. This language was mailed to tribes and TDHEs for consultation in January, 1999. This group then wrote non dwelling cost limits and mailed them to tribes/TDHEs for consultation in April, 1999. The rule reflects comments received during the consultation and during HUD's clearance process.
If these proposed changes are adopted in substantially the same form as below, the Department will publish TDCs, instead of the present DC&Es. The tribes/TDHEs will choose whether to use the published TDCs, or develop their own standards, consistent with this rule.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) does not apply to the proposed information collection requirements contained in §§ 1000.158 and 1000.162 because HUD anticipates that the requirements will apply to fewer than 10 TDHEs.
In accordance with Executive Order 13084,
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires that an agency analyze the impact of a rule on small entities whenever it determines that the rule is likely to have a significant impact on a substantial number of small entities. While many TDHEs may be small entities, the effect of this rule developed in consultation with tribal representatives, will not be likely to have a significant impact on a substantial number of them. As mentioned above, it is expected that fewer than 10 TDHEs will be affected by this rule. To the extent that small entities will be affected, the impact is expected to be beneficial, as a result of the consultation that has taken place. We encourage small entities to submit comments, however, on ways that the impact of the rule on them could be minimized.
A Finding of No Significant Impact with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969. The Finding of No Significant Impact is available for public inspection between the hours of 7:30 a.m. and 5:30 p.m. weekdays in the Regulations Division at the address stated above.
The General Counsel, as the Designated Official under section 6(a) of Executive Order 13132,
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532) establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. This proposed rule does not impose a Federal mandate that will result in the expenditure by State, local, or tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year.
The Office of Management and Budget (OMB) has reviewed this proposed rule under Executive Order 12866,
The Catalog of Federal Domestic Assistance number for this program is 14.867.
Aged, Community development block grants, Grant programs—housing and community development, Grant programs—Indians, Indians, Individuals with disabilities, Low and moderate income housing, Reporting and recordkeeping requirements.
Accordingly, HUD proposes to amend part 1000 of title 24 of the Code of Federal Regulations as follows:
1. The authority citation for part 1000 continues to read as follows:
25 U.S.C. 4101
2. Revise § 1000.156 to read as follows:
Yes. Affordable housing must be of moderate design. For these purposes, moderate design is defined as housing that is of a size and with amenities consistent with unassisted housing offered for sale in the Indian tribe's general geographic area to buyers who are at or below the area median income. The local determination of moderate design applies to all housing assisted under an affordable housing activity, including development activities (e.g., acquisition, new construction, reconstruction, moderate or substantial rehabilitation of affordable housing and homebuyer assistance) and model activities. Acquisition includes assistance to a family to buy housing.
3. Add new §§ 1000.158, 1000.160, and 1000.162 to read as follows:
(a) A recipient must use one of the methods specified in paragraph (b) or (c) of this section to determine if an assisted housing project meets the moderate design requirements of § 1000.156. For purposes of this requirement, a project is one or more housing units, of comparable size and design, developed with assistance provided by the Act.
(b) The recipient may adopt written standards for its affordable housing programs that reflect the requirement specified in § 1000.156. The standards must describe the type of housing, explain the basis for the standards, and use similar housing in the Indian tribe's general geographic area. Units with the same number of bedrooms within a project must be comparable with respect to size, cost, and amenities. For each affordable housing project, the recipient must maintain documentation substantiating compliance with the adopted housing standards. The standards and documentation substantiating compliance for each activity must be available for review by the general public and, upon request, by HUD. Prior to awarding a contract for the construction of housing or beginning construction using its own workforce, the recipient must complete a comparison of the cost of developing or acquiring/rehabilitating the affordable housing with the limits provided by the TDC discussed in paragraph (c) of this section and may not, without prior HUD approval, exceed by more than 10 percent the TDC maximum cost for the project. In developing standards under this paragraph, the recipient must establish, maintain, and follow policies that determine a local definition of moderate design which considers:
(1) Gross area;
(2) Total cost to provide the housing;
(3) Environmental concerns and mitigations;
(4) Climate;
(5) Comparable housing in geographical area;
(6) Local codes, ordinances and standards;
(7) Cultural relevance in design;
(8) Design and construction features that are reasonable, and necessary to provide decent, safe, sanitary and affordable housing; and
(9) Design and construction features that are accessible to persons with a variety of disabilities.
(c) If the recipient has not adopted housing standards specified in paragraph (b) of this section, Total Development Cost (TDC) limits published periodically by HUD establish the maximum amount of funds (from all sources) that the recipient may use to develop or acquire/rehabilitate affordable housing. The recipient must complete a comparison of the cost of developing or acquiring/rehabilitating the affordable housing with the limits provided by the TDC and may not, without prior HUD approval, exceed the TDC maximum cost for the project.
Yes. Non-dwelling buildings must be of a design, size and with features or amenities that are reasonable and necessary to accomplish the purpose intended by the buildings. The purpose of a non-dwelling building must be to support an affordable housing activity, as defined by the Act. These limits apply to buildings such as community facilities and office space; they do not apply to structures related to utilities or power supply.
(a) The recipient must use one of the methods described in paragraph (b) or (c) of this section to determine if a non-dwelling building meets the limitation requirements of § 1000.160. If the recipient develops, acquires, or rehabilitates a non-dwelling building with combined funds (from NAHASDA and other sources), then the cost limit standard established under these regulations applies to the combined
(b)(1) The recipient may adopt written standards for non-dwelling buildings. The standards must describe the type of building and must clearly describe the criteria to be used to guide the cost, size, design, features, amenities, performance or other factors. The standards for such buildings must be able to support the reasonableness and necessity for these factors and to clearly identify the affordable housing activity that is being provided.
(2) When the recipient applies a standard to a particular building, it must document the following:
(i) Identification of targeted population to benefit from the building;
(ii) Identification of need or problem to be solved;
(iii) Affordable housing activity provided or supported by the building;
(iv) Alternatives considered;
(v) Provision for future growth and change;
(vi) Cultural relevance of design;
(vii) Size and scope supported by population and need;
(viii) Design and construction features that are accessible to persons with a variety of disabilities;
(ix) Cost; and
(x) Compatibility with community infrastructure and services.
(c) If the recipient has not adopted building program standards specified in paragraph (b) of this section, then it must demonstrate and document that the non-dwelling building is of a cost, size, design and with amenities consistent with similarly designed and constructed buildings in the recipient's general geographic area.
U.S. Army Corps of Engineers, Department of the Army, DOD; and Environmental Protection Agency.
Proposed rule.
The Department of the Army (Army) and the Environmental Protection Agency (EPA) today are jointly proposing to revise their Clean Water Act (CWA) regulations defining the term “fill material.” At present, the Army and EPA definitions of “fill material” differ from each other, and this has resulted in regulatory uncertainty and confusion. The existing Army definition defines “fill material” as any material used for the primary purpose of replacing an aquatic area with dry land or of changing the bottom elevation of a water body, and specifically excludes from that definition any material discharged into the water primarily to dispose of waste, as that activity is regulated under section 402 of the Clean Water Act. The existing EPA definition defines “fill material” as any pollutant which replaces a portion of the waters of the U.S. with dry land or which changes the bottom elevation of such waters, regardless of the purpose of the discharge. Today's proposal would amend both the Army and EPA definitions of “fill material” to provide a single definition of that term, and thus ensure proper, consistent, and more effective regulation under the CWA of materials that have the effect of replacing any portion of a water of the U.S. States with dry land or of changing the bottom elevation of any portion of a water of the U.S. Today's proposal also would make a change to the definition of the term “discharge of fill material” in order to provide further clarification of this issue.
Written comments must be submitted by June 19, 2000.
Send written comments on the proposed rule to the Office of the Chief of Engineers, ATTN CECW-OR, 20 Massachusetts Avenue, Washington, DC 20314-1000.
We request that commenters submit any references cited in their comments. We also request that commenters submit an original and 2 copies of their written comments and enclosures. Commenters that want receipt of their comments acknowledged should include a self-addressed, stamped envelope. All written comments must be postmarked or delivered by hand. No facsimiles (faxes) will be accepted.
A copy of the supporting documents for this proposed rule is available for review in Room 6225 at the U.S. Army Corps of Engineers' Pulaski Building, located at 20 Massachusetts Avenue, Washington, DC 20314-1000. For access to docket materials, call (202) 761-0199 between 9 a.m. and 3:30 p.m. for an appointment. Comments received on the proposed rule will also be available for examination in Corps District or Division offices.
For information on the proposed rule, contact either Mr. Thaddeus Rugiel, U.S. Army Corps of Engineers, ATTN CECW-OR, 20 Massachusetts Avenue, Washington, DC 20314-1000, phone: (202) 761—0199, e-mail: Thaddeus. J.Rugiel@ HQ02.USACE.ARMY.MIL, or Mr. John Lishman, U.S. Environmental Protection Agency, Office of Wetlands, Oceans and Watersheds (4502F), Ariel Rios Building, 1200 Pennsylvania Avenue NW, Washington, DC 20460, phone: (202) 260-9180, e-mail: lishman.john@ epa.gov.
In compliance with President Clinton's June 1, 1998, Executive Memorandum on Plain Language in government writing, this preamble is written using plain language. Thus, the use of “we” in this action refers to EPA and the U.S. Army Corps of Engineers (Corps), and the use of “you” refers to the reader.
Persons or entities that discharge material to waters of the U.S. that has the effect of replacing any portion of a water of the U.S. with dry land or changing the bottom elevation of any portion of a water of the U.S. could be regulated by today's proposed rule. The CWA generally prohibits the discharge of pollutants into waters of the U.S. without a permit issued by EPA or a State approved by EPA under section 402 of the Act, or, in the case of dredged or fill material, by the Corps or an approved State under section 404 of the Act. Today's proposal addresses the CWA section 404 program's definitions of “fill material” and “discharge of fill material,” which are important for determining whether a particular discharge is subject to regulation under CWA section 404. In developing today's proposal to reconcile the agencies differing definitions, we have carefully considered our current regulatory practice and the terms of a 1986 Memorandum of Agreement Between the Assistant Administrators for External Affairs and Water, U.S. Environmental Protection Agency, and the Assistant Secretary of the Army for Civil Works Concerning Regulation of Discharges of Solid Waste Under the Clean Water Act (“1986 Solid Waste MOA”). The 1986 Solid Waste MOA sets out a number of factors to help determine whether material is subject to the CWA under section 404 or 402. Today's proposal does not alter current practice, but rather is intended to clarify what constitutes “fill material” subject to CWA section 404. Examples of entities potentially regulated include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that are likely to be regulated by this action. This table lists the types of entities that we are now aware of that could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your organization or its activities are regulated by this action, you should carefully examine the applicability criteria in § 230.2 of Title 40 of the Code of Federal Regulations, as well as the preamble discussion in section II of today's proposal. If you have questions regarding the applicability of this action to a particular entity, consult the persons listed in the preceding
The CWA is the primary federal statute addressing the discharge of pollutants to waters of the U.S. Section 301(a) of the CWA generally prohibits such discharges except as may be authorized by a permit issued under the Act. Two different permitting regimes are created by the Act: (1) section 404 permits, primarily administered by the Corps, addressing the discharge of dredged or fill material, and (2) section 402 permits (commonly referred to as National Pollutant Discharge Elimination System, or “NPDES” permits), administered by EPA and the States, which address the discharge of all other pollutants. The CWA defines the term “pollutant” to include materials such as rock, sand, and cellar dirt that often serve as “fill material.” The CWA, however, does not define the term “fill material,” leaving it to the agencies to adopt a definition consistent with the statutory language and scheme. Providing a clear and consistent definition for the term “fill material” under the CWA is important in determining whether a proposed discharge of a pollutant is subject to regulation under section 404 or section 402.
In keeping with the fundamental difference in the nature and effect of the discharge that each program was intended by Congress to address, sections 404 and 402 employ different approaches to regulating the discharges to which they apply. The section 402 program is focused on (although not limited to) discharges such as wastewater discharges from industrial operations and sewage treatment plants, stormwater and the like. See, e.g., CWA sections 304 (b) and (d) and 402(p). Pollutant discharges are controlled under the section 402 program principally through the imposition of effluent limitations, which are restrictions on the “quantities, rates, and concentrations of chemical, physical, biological and other constituents which are discharged from point sources into navigable waters” (CWA section 502(11)). Section 402 permits must include effluent limitations that reflect treatment with available pollution control technology, and any more stringent limitations necessary to meet water quality standards for the receiving water (CWA section 301(b)). There are no statutory or regulatory provisions under the section 402 program designed to address discharges that convert waters of the U.S. to dry land. Moreover, the section 402 permitting process does not require an evaluation of alternatives to a proposed discharge or mitigation for unavoidable impacts.
The section 404 permitting program differs from the section 402 program in several fundamental respects. First, section 404 focuses exclusively on two materials: dredged material and fill material. The term “fill material” clearly contemplates material that fills in a water body, and thereby converts it to dry land or changes the bottom elevation. Fill material differs fundamentally from the types of pollutants covered by section 402 because the principal environmental concern is the loss of a portion of the water body itself. For this reason, the section 404 permitting process focuses on different considerations than the section 402 permitting program. Section 404(b) of the CWA directs the Corps to apply Guidelines promulgated under section 404(b)(1) of the CWA, which in turn must be based on criteria comparable to the criteria contained in section 403(c) of the CWA. Among other things, those criteria expressly require consideration of “other possible locations and methods of disposal” and “land-based alternatives.”
The section 404(b)(1) Guidelines do provide for consideration of the effects of chemical contaminants on water quality in a number of ways, specifically requiring compliance with applicable State water quality standards (40 CFR 230.10(b)(1)), toxic effluent limits or standards established under CWA section 307 (40 CFR 230.10(b)(2)), and appropriate use of chemical and biological testing to evaluate contaminant effects (40 CFR 230.11(d) and (e); 230.60). However, because section 404 was intended by Congress to provide a vehicle for regulating materials whose effects include the physical conversion of waters to non-waters or other physical alterations of aquatic habitat, the section 404(b)(1) Guidelines go beyond such a water quality based approach to require numerous additional considerations before a section 404 permit may be issued. These include careful consideration of the effects of the discharge on the aquatic ecosystem as a whole, as well as evaluation of alternatives to the discharge and measures to minimize and compensate for unavoidable adverse effects.
Under the section 404(b)(1) Guidelines, discharges having significant adverse effects on aquatic ecosystems are not allowable (40 CFR 230.10(c) (2) and (3)). As a result, the Guidelines require evaluation of the effects of discharges on the aquatic ecosystem (40 CFR 230.11(e)), including cumulative impacts and secondary effects (40 CFR 230.11(g) and (h)). The Guidelines also set forth specific provisions for considering impacts on the aquatic ecosystem, including effects on aquatic organisms in the food web and other wildlife (40 CFR part 230, subpart D). In addition, the Guidelines do not allow discharges that would have significant adverse effects on human health, recreation, aesthetic, and economic values (40 CFR 230.10(c) (1) and (4)). The Guidelines set forth specific provisions for considering such impacts (40 CFR part 230, subpart F).
In addition to providing for careful assessment of the overall effects of the discharge on aquatic ecosystems and other amenities, the Guidelines do not
Prior to 1977, both the Corps and EPA had defined “fill material” as “any pollutant used to create fill in the traditional sense of replacing an aquatic area with dry land or of changing the bottom elevation of a water body for any purpose. * * *” 40 FR 31325 (July 25, 1975); 40 FR 41291 (September 5, 1975).
In 1977, the Corps amended its definition of “fill material” to add a “primary purpose test,” and specifically excluded from that definition material that was discharged primarily to dispose of waste. 42 FR 37130 (July 19, 1977). This change was adopted by the Corps because it recognized that some discharges of solid waste materials technically fit the definition of fill material; however, the Corps believed that such waste materials should not be subject to regulation under the CWA section 404 program. Specifically, the Corps' definition of “fill material,” unchanged since 1977, currently reads as follows:
(e) The term “fill material” means any material used
EPA did not amend its regulations to adopt a “primary purpose test” similar to that used by the Corps. Instead, the EPA regulations at 40 CFR 232.2 currently define “fill material” as “any ‘pollutant’ which replaces portions of the ‘waters of the United States” with dry land or which changes the bottom elevation of a water body
These differing definitions of the term “fill material” have resulted in inconsistencies which impede the fair and effective implementation of the CWA in a number of ways. For example, in the case of the Corps definition, use of a “primary purpose test” appears to require the Corps to make a subjective determination about the primary purpose of a prospective discharge. This subjective determination becomes even more problematic to make where the proposed discharge has multiple purposes. The “primary purpose test” also allows any prospective discharger or project proponent to seek to affect which regulatory regime would apply by simply asserting a purported purpose. This definition also lends itself to the possible exclusion of materials that are most commonly used for the very purpose of raising the elevation of an area (i.e., of filling a water of the U.S.) if the materials are a waste product of some other activity.
The confusion caused by the “primary purpose test” has also engendered extensive litigation. We are concerned that if the inconsistencies and ambiguities in the regulatory definitions of “fill material” are not corrected, further litigation would arise and future court decisions could reduce the ability of the CWA section 404 program to protect the quality of the aquatic environment, and the overall public interest.
The court decision that most clearly illustrates the serious problems caused by the “primary purpose test” is the Ninth Circuit Court of Appeals decision in
One of the Ninth Circuit's conclusions in the
The Ninth Circuit's decision in the
These problems can be avoided by focusing on the effect of the material to be discharged rather than the purpose. For example, in the decision of the Fifth Circuit Court of Appeals in
* * * the burying of the unburned material, as well as the discing, had the
Thus, in the
Other litigation which reflects the confusion caused by the ambiguities of the “primary purpose test” originated in the District Court for the Southern District of West Virginia (
In contrast to the use of a “primary purpose test,” the EPA regulations currently define “fill material” as “* * * any ‘pollutant’ which replaces portions of the ‘waters of the United States’ with dry land or which changes the bottom elevation of a water body
In order to ensure a clear, effective, and consistent regulatory approach, the Corps and EPA today are proposing identical definitions of the term “fill material.” In particular, we believe that regardless of the purpose of a prospective discharge, the definition of “fill material” should cover material that has the effect of fill.
Accordingly, today's proposal would amend both the Corps' definition of “fill material” at 33 CFR 323.2(e) and the EPA's definition at 40 CFR 232.2 to provide that “fill material” means material that has the effect of replacing any portion of a water of the U.S. with dry land, or changing the bottom elevation of any portion of a water of the U.S. At the same time, it would specifically exclude from the definition of fill material discharges subject to EPA proposed or promulgated effluent limitation guidelines and standards under CWA sections 301, 304, and 306, or discharges covered by a NPDES permit issued under CWA section 402.
In the revised definition of “fill material” we have included examples of certain types of material that often constitute fill. We wish to emphasize that these are illustrative clarifying examples and are not intended to be an exhaustive list. As today's rule formally adopts the effects test, it also is important that we clarify our intent with respect to certain materials not specifically listed within the definition. The materials include wood chips, coal mining overburden, certain forms of solid waste, and material used to construct solid waste landfills.
With respect to “wood chips,” when this material is scattered as a result of the normal use of wood cutting equipment such as chainsaws, bush hogs, and similar equipment, the wood chips would not have the effect of fill, and thus would not be covered by CWA section 404 under today's proposal. However, some operators of heavy mechanized equipment place or stockpile wood chips in wetlands to use as temporary road material, equipment pads, or surfacing to facilitate operation of equipment such as trucks, backhoes, and excavation equipment. In addition, in some cases the regular operation of chipping equipment can result in stockpiling or mounding of chips in waters of the U.S. In situations such as these, because of their quantity or distribution, the woodchips have the effect of fill and would be subject to regulation under CWA section 404.
With regard to proposed discharges of coal mining overburden, we believe that the placement of such material into waters of the U.S. has the effect of fill and therefore, should be regulated under CWA section 404. This approach is consistent with existing practice and the existing EPA definition of the term “fill material.” In Appalachia in particular, such discharges typically result in the placement of rock and other material in the heads of valleys, with a sedimentation pond located downstream of this “valley fill.” This has required authorization under CWA section 404 for the discharges of fill material into waters of the U.S., including the overburden and coal refuse, as well as the berms, or dams, associated with the sedimentation ponds. The effect of these discharges is to replace portions of a water body with dry land. Therefore, today's proposal makes clear that such material is to be regulated under CWA section 404. Also,
In proposing today's rule, it is the intent of the Corps and EPA to ensure that all activities involving discharge of pollutants into the waters of the U.S. associated with coal mining be regulated effectively to ensure protection of the aquatic environment. Consistent with the terms of the 1998 Bragg settlement agreement a Memorandum of Understanding (MOU) to coordinate coal mining permit evaluations in the state was entered into by the Office of Surface Mining, the Fish and Wildlife Service, EPA, the Corps, and the State of West Virginia. Completed in April 1999, the MOU describes those discharges that the agencies believe generally should have only a minimal effect on waters of the U.S. and thus could be eligible for general permit authorization by the Corps. Prior to that MOU, agency practice had allowed the authorization of some discharges that probably should have received individual permit review. In addition, the MOU initiated coordination procedures between CWA and Surface Mining Control and Reclamation Act permit reviews that also has resulted in the development of technical models for minimizing the size of proposed coal discharges. The settlement agreement included the initiation of a comprehensive Environmental Impact Statement (EIS) as well. The EIS is scheduled to be completed in December 2000 and will assess current federal and state authorities for regulating coal mining discharges in Appalachia and what measures may be necessary to ensure protection of human health and the environment. A draft EIS will be issued this summer for public comment.
With respect to solid waste, it is important at the outset to draw a clear distinction between solid waste discharged directly into waters of the U.S. and sanitary solid waste landfills (the latter is discussed further below). Under today's proposed rule, many forms of solid waste (including heterogeneous solid waste such as garbage) could fall within the definition of “fill material” if such waste were to be placed directly into waters of the U.S. This is because most forms of solid waste, if discharged into a water body, would have the effect of changing the bottom elevation of a portion of an aquatic area, or replacing a portion of the aquatic area with dry land.
Under today's proposal, the only exception would be for those discharges covered by proposed or final effluent limitation guidelines and standards under sections 301, 304, or section 306 of the CWA or an NPDES permit issued under section 402 of the CWA. Generally, under these provisions of the CWA, EPA regulates solid waste materials that are of a homogeneous nature normally resulting from a single-industry site or set of known processes. For example, such wastes as identified in 40 CFR part 440, subpart M (placer mining), 40 CFR part 436, subpart R (phosphate mining), 40 CFR part 440, subpart E (titanium mining), 40 CFR part 436, subpart C (sand and gravel mining), 40 CFR part 423 (steam electric power generation), and 40 CFR part 435 (oil and gas extraction). We welcome comment on all aspects of today's proposal, and especially solicit comment on whether the proposal's reference to discharges “covered by proposed or final effluent limitations guidelines and standards under sections 301, 304 or section 306 of the Clean Water Act * * * or discharges covered by an NPDES permit” fully encompasses the range of discharges properly subject to section 402 of the Act.
Notwithstanding the fact that the definition of fill could include many forms of solid waste, you should not infer from this fact that either the Corps or the EPA believes that solid waste (e.g., trash, debris, automobiles) is an appropriate or legitimate form of fill material for which CWA section 404 permits should be or will be granted. In fact, the opposite is true. As a general matter, we do not expect that CWA section 404 authorizations should be, or are likely to be, granted for proposals to discharge of fill material consisting of such solid waste into any water of the U.S.
In this regard, for many years the Corps has advised the regulated public that, as a general rule, such solid waste is not an acceptable form of fill material for which CWA section 404 permits can be issued. For example, all Corps Nationwide General Permits are subject to General Condition Number 3, which reads as follows:
3.
In the most recent revision of the nationwide general permit conditions, the list of “unsuitable” forms of fill material has been expanded to include “asphalt.” (See 65 FR Page 12896, March 9, 2000).
This general condition reflects the policy that the waters of the U.S. should not be polluted by discharges of solid waste, which is generally not a suitable or appropriate form of “fill material,” for a variety of reasons. For example, many forms of solid waste, such as heterogeneous solid waste, junked automobiles, discarded appliances, or chemically processed solid waste (e.g., heap leach piles) often contain pollutants (including toxic pollutants) that could, over time, leach into and contaminate both the surface waters and ground water. Consequently, as a general rule, members of the public should not seek CWA section 404 authorization for the discharge of such solid waste directly into the waters of the U.S., because there is no likelihood that section 404 permits would be granted.
Where there is no reasonable prospect that a Corps District Engineer would grant a section 404 permit to discharge solid waste into a water body, it would be a waste of time for both the applicant and the Corps for the Corps to have to accept and process a permit application for such a proposed discharge. Thus, the Corps is considering including in its regulation a provision that would allow the District Engineer complete discretion to refuse to process any permit application to discharge fill material that the District Engineer determines to be “unsuitable fill material.” This would allow Corps District offices to avoid expending limited resources processing applications for the direct discharge into waters of the U.S. of any form of solid waste where the District Engineer determines that there is no reasonable possibility for the granting of a section 404 permit.
To accomplish this purpose, the Corps could include within its regulations at 33 CFR 323.2 a definition for a new term, “unsuitable fill material.” That proposed new definition would read generally as follows:
The term “unsuitable fill material” means any material proposed to be discharged into waters of the United States that would fall under the definition of “fill material,” but
The Corps recognizes the fact that special and exceptional circumstances can arise whereby material generally deemed “unsuitable” for direct discharge into water bodies can be authorized for discharge, with little or no risk to the environment, or even to enhance environmental values. For example, over the years the Corps has authorized the creation of a number of artificial reefs from various types of discarded “waste materials.” Therefore, the new definition of “unsuitable fill material” would not reduce in any way the discretion of any District Engineer to authorize the discharge of any waste material for a beneficial purpose.
Accordingly, we request comment on adding a definition in the Corps regulations for the term “unsuitable fill material,” and on changing Corps regulations to grant the District Engineer authority to reject, without further processing, any permit application for “fill material” that the District Engineer determines to be “unsuitable fill material.”
Unfortunately, it is well known that, upon occasion and from time to time, individuals illegally “dump” solid waste into wetlands and other aquatic areas, without having sought any sort of CWA authorization for those discharges. Such illegal discharges of solid waste present an enforcement problem under the CWA. The EPA will continue to serve as the lead enforcement agency regarding such unpermitted discharges of solid waste.
With respect to solid waste landfills, our intent has been, and continues to be, that liners, berms, and other infrastructure that are constructed of materials such as rock, sand, gravel, clay, soil, plastics, and other materials that have the effect of changing the elevation of waters of the U.S. should be regulated under section 404 of the CWA. In the case of a landfill that has received an individual Department of the Army section 404 permit, the subsequent disposal of solid waste into the landfill, while subject to regulation under the Resource Conservation and Recovery Act (RCRA), would not be subject to regulation under the CWA. As with current practice, discharges of leachate from landfills into waters of the U.S. would remain subject to CWA section 402.
Our approach today is consistent with current practice and the 1986 Solid Waste MOA between the EPA and the Army that the agencies have continued to follow in implementing our current regulations. That MOA sets out a number of factors in paragraphs 4 and 5 to help determine whether material is subject to the CWA under 404 or 402, and today's proposal has been drafted to take into account factors similar to those in the 1986 Solid Waste MOA. In particular, the proposal's provision that material with the effect of fill would be subject to section 404 is similar to paragraph B.4.c of the 1986 Solid Waste MOA (providing that when the principal effect of the discharge is physical loss or modification of waters of the U.S., this is a factor indicating application of section 404). Similarly, proposed language excluding from coverage under section 404 material that is covered by proposed or promulgated EPA effluent guidelines or standards is consistent with paragraph B.5 of the 1986 Solid Waste MOA (providing that when discharges are in liquid, semi-liquid, or suspended form or the discharge is of homogeneous solid material, this is a factor indicating application of section 402). Additionally, as provided for in paragraph B.2 of the 1986 Solid Waste MOA, in cases of unpermitted discharges of solid waste into waters of the U.S., EPA will continue to serve as the lead enforcement agency.
Consistent with the above described revisions to the definition of “fill material,” we also are proposing to revise the definition of the term “discharge of fill material” to further clarify the issue of section 404 applicability with regard to materials used to construct solid waste landfills and placement of coal mining overburden. In particular, we believe placement of these materials in waters of the U.S. is properly subject to regulation under section 404 of the CWA. Accordingly, we are proposing a clarification to the regulations on this point by adding these placement activities to the list of examples set out in the regulations defining the “discharge of fill material” at 33 CFR 323.2(f) and 40 CFR 232.2.
This action does not impose any new information collection burden or alter or establish new record keeping or reporting requirements. Thus, this action is not subject to the Paperwork Reduction Act.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), we must determine whether the regulatory action is “significant” and therefore subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a “significant regulatory action.” As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires us to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
Under section 6 of Executive Order 13132, we may not issue a regulation
This proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Currently, under the CWA, any discharge of pollutants into waters of the U.S. requires a permit. Today's proposal relates solely to whether a particular discharge is appropriately authorized under section 402 or section 404 of the Act. Moreover, the proposed allocation of authority between these programs is consistent with existing agency practice. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.
The proposed rule does not impose any new requirements. Currently, under the CWA, any discharge of pollutants into waters of the U.S. requires a permit. Today's proposal relates solely to whether a particular discharge is appropriately authorized under section 402 or section 404 of the Act. Moreover, the proposed allocation of authority between these programs is consistent with existing agency practice. After considering the economic impacts of today's proposed rule on small entities, we certify that this action will not have a significant economic impact on a substantial number of small entities.
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
We have determined that this rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. The proposed rule does not impose any new requirements. Currently, under the CWA, any discharge of pollutants into waters of the U.S. requires a permit. Today's proposal relates solely to whether a particular discharge is appropriately authorized under section 402 or section 404 of the Act. Moreover, the proposed allocation of authority between these programs is consistent with existing agency practice. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. For the same reasons, we have determined that this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Thus, today's rule is not subject to the requirements of section 203 of UMRA.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (the NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note), directs us to use voluntary consensus standards in our regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices etc.) that are adopted by one or more voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.
As part of a larger effort, EPA is undertaking a project to cross-reference existing voluntary consensus standards in testing, sampling, and analysis, with current and future EPA test methods. When completed, EPA will use this project to assist in identifying potentially applicable voluntary consensus standards that can then be evaluated for equivalency and applicability in determining compliance with future EPA regulations.
This proposed rulemaking does not involve technical standards. Therefore, we are not considering the use of any voluntary consensus standards. We welcome comments on this aspect of the proposed rulemaking and specifically, invite the public to identify any potentially applicable voluntary consensus standards and to explain why such standards should be used in this regulation.
Executive Order 13045, entitled Protection of Children From Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that we determine (1) is economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental
This regulation is not subject to Executive Order 13045 because, as previously discussed, it does not constitute an economically significant regulatory action as defined by Executive Order 12866. Furthermore, it does not concern an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children.
Under Executive Order 13084, we may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian Tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance cost incurred by the Tribal governments, or we consult with those governments. If we comply by consulting, Executive Order 13084 requires us to provide OMB, in a separately identified section of the preamble to the rule, a description of the extent of our prior consultation with representatives of affected Tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires us to develop an effective process permitting elected officials and other representatives of Indian Tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
Today's rule does not significantly or uniquely affect the communities of Indian Tribal governments, nor does it impose significant compliance costs on them. Today's proposal relates solely to whether a particular discharge is appropriately authorized under section 402 or section 404 of the Clean Water Act. Moreover, the proposed allocation of authority between these programs is consistent with existing agency practice. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.
As required by the National Environmental Policy Act (NEPA), the Corps prepares appropriate environmental documentation for its activities affecting the quality of the human environment. The Corps has made a preliminary determination that today's proposed rule does not constitute a major Federal action significantly affecting the quality of the human environment, and thus does not require the preparation of an Environmental Impact Statement (EIS). Among the reasons for this conclusion is the fact that the Corps prepares appropriate NEPA documents, when required, covering specific permit situations. The implementation of the procedures prescribed in this proposed regulation would not authorize anyone (e.g., any landowner or permit applicant) to perform any work involving regulated activities in waters of the U.S. without first seeking and obtaining an appropriate permit authorization from the Corps. In addition, this proposed regulation merely revises and clarifies the Corps' and EPA's respective definitions of the terms “fill material” and “discharge of fill material” to allow more objective determinations, and is consistent with current practice. Accordingly, the Corps expects to prepare an environmental assessment (EA) for the rule.
Water pollution control, Waterways.
Environmental protection, Intergovernmental relations, Water pollution control.
Accordingly, as set forth in the preamble 33 CFR part 323 is proposed to be amended as set forth below:
1. The authority citation for part 323 continues to read as follows:
33 U.S.C. 1344.
2. Amend § 323.2 as follows:
a. Paragraph (e) is revised.
b. In paragraph (f), in the second sentence, add the words “placement of
The revision reads as follows:
(e)(1) Except as specified in paragraph (e)(2) of this section, the term
(i) Replacing any portion of a water of the United States with dry land; or
(ii) Changing the bottom elevation of any portion of a water of the United States.
(2) The term
Accordingly, as set forth in the preamble 40 CFR part 232 is proposed to be amended as set forth below:
1. The authority citation for part 232 continues to read as follows:
33 U.S.C. 1344.
2. Amend § 232.2 as follows:
a. The definition of “Fill material” is revised.
b. In the definition of “Discharge of fill material,” in paragraph (1), add the words “placement of fill material for construction or maintenance of liners, berms, and other infrastructure associated with solid waste landfills; placement of coal mining overburden;”, after the words “utility lines;”.
The revision reads as follows;
(i) Replacing any portion of water of the United States with dry land; or
(ii) Changing the bottom elevation of any portion of a water of the United States.
(2) The term